Communications Data and Interception
Baroness Hamwee Excerpts(12 years, 2 months ago)
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Baroness Hamwee (LD)
My Lords, I am grateful to the Minister for contacting me earlier this morning. Obviously, bringing this stop-gap legislation in such a hurry to both Houses has been a difficult process, and the opportunities for consultation have therefore been limited. There are very strong and divided views on these issues, including among human rights and civil liberties groups. I wonder whether the Minister can reassure the House that there will be consultation with those groups on regulations and guidance, if there is to be any, as well as their involvement in the review of RIPA.
I welcome what was described as a package of pro-civil liberties measures mentioned in the Statement. Will the Minister tell the House whether they will be introduced to the same swift timetable? Also—I do not mean the question to be frivolous—we are proposing to talk to the Americans, but have they agreed to talk to us?
Lord Taylor of Holbeach
We have good discussions with all our allies and I can assure the noble Baroness that I have no fear in that regard. I understand what she is saying about civil liberties and much of the discussions about this have centred on ways in which we can enhance privacy protection. The noble Baroness is quite right; we have not had time to consult. Letters will be going to a large number of people and I know that the list includes a number of the best-known civil liberties groups. As far as future business is concerned, and the implementation of the powers in the Bill, they will be parties to the discussion in the usual way. I will do my best to ensure that the noble Baroness is also kept informed.
Serious Crime Bill [HL]
Baroness Hamwee Excerpts(12 years, 2 months ago)
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Baroness Hamwee
Baroness Hamwee (LD)
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.
Baroness Anelay of St Johns (Con)
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.
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.
Baroness Hamwee
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.
Baroness Williams of Trafford (Con)
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.
Baroness Hamwee
Baroness Hamwee
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.
Baroness Williams of Trafford
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.
Baroness Hamwee
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”?
Baroness Williams of Trafford
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.
Baroness Hamwee
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.
Baroness Hamwee
Baroness Hamwee
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.
Baroness Williams of Trafford
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.
Baroness Hamwee
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.
Lord Swinfen
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.
Baroness Hamwee
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.
Baroness Hamwee
Baroness Hamwee
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.
Baroness Hamwee
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.
Lord Howarth of Newport
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”,
and that,
“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.
Baroness Hamwee
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.
Baroness Smith of Basildon
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.
Baroness Hamwee
“Guidance
In section 47 of the Policing and Crime Act 2009 (guidance), for subsection (3) substitute—“(3) Before issuing or revising any guidance under this section, the Secretary of State must consult the Lord Chief Justice of England and Wales, and representatives of chief police officers, local authorities, health authorities and persons concerned with the care of young people, the Youth Justice Board and such other persons as the Secretary of State thinks appropriate.””
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.
Baroness Hamwee
Baroness Hamwee
Amendment 40B will end this part of the work on the Bill with, again, something of a whimper, but nevertheless I shall pursue it very briefly in order to get the Minister’s comment.
Clause 56 deals with the retention or return of substances seized under these new provisions. Subsection (7) provides that where the substance is being retained for a second period, reasonable efforts are made,
“to give … notice to the person who the officer thinks may be entitled to the substance”.
The amendment would simply add that notice should also be given to the person from whom it was seized if that person is different. I may be missing something somewhere else in this clause, but I beg to move.
Lord Howarth of Newport
My Lords, I am aware that the Committee is hungry. I am hungry myself, so I shall be extremely brief. This amendment, helpfully tabled by the noble Baroness, Lady Hamwee, provides us with the only opportunity to debate the provisions in the Bill that deal with cutting agents used to bulk out illegal drugs. I simply want to draw to the attention of the Committee the law of unintended consequences. Cracking down on relatively harmless cutting agents such as benzocaine runs the risk that you drive criminals to use much more damaging cutting agents. A case was reported in Scotland recently in which six people died. They had used heroin that had been bulked out with a cutting agent contaminated with anthrax. Criminals are entirely unscrupulous. I hope that, when under the terms of this clause, the police, customs and courts are considering whether to return or retain cutting agents that have been seized, they will think very carefully about the consequences of impounding relatively safe cutting agents, thereby providing an incentive for criminals to use much more dangerous cutting agents.
I will also, although this is a painful thing to do, draw to the attention of the Committee the utterly tragic case of Martha Fernback, a 15 year-old girl who died nearly a year ago after consuming ecstasy—MDMA—which was 91% pure compared to the average street-level purity of 58%. Had that MDMA been cut and the purity been what it would normally be when it came into her hands, she would still be alive today. Her mother, Anne-Marie Cockburn, has campaigned with tremendous courage and great wisdom asking that the Home Secretary and the shadow Home Secretary think deeply about whether it would be right to move from the system of prohibition that trapped that girl towards a system of legalisation and strict regulation as well as vastly better education in this field. I will not enlarge on that theme because the Minister and the House know my views well, but as the House determines whether to approve these clauses we ought to bear in mind that legislation with the best of intentions, which the Government have, can lead to horribly counterproductive effects.
Baroness Williams of Trafford
My Lords, if a court approves the further retention of a suspected drug-cutting agent beyond the initial 30-day detention period, it is only right that the responsible police or customs officer makes reasonable efforts to inform the person who may be entitled to the substances if the person was not present or represented at the court hearing. A person entitled to the substances is defined in Clause 53 as the person the substances were seized from or the owner of the substances. It is important that all those persons who are entitled to receive notice do so. This provides additional protection for the legitimate trade, ensuring people have sufficient time to consider and act upon the notice, if appropriate.
I commend my noble friend Lady Hamwee for ensuring that we continue to minimise the impact on the legitimate trade by setting out in clear terms who should be informed of the court’s decision. I shall therefore give further consideration to extending the provision to ensure that notice is given to the person from whom the suspected drug-cutting agents were seized, if different from the owner. I will reflect on this point and let her know the outcome in advance of Report.
On the two points made by the noble Lord, Lord Howarth, about switching to more dangerous cutting agents, the proposals include a general seizure power which covers any substance suspected of being intended for use as a drug-cutting agent. Therefore, we do not anticipate that they will lead to drug traffickers using cutting agents that are more dangerous than those currently being used. I have heard of dangerous cutting agents being used currently. Any new substances that traffickers begin to use would be equally subject to seizure under these powers.
On the risk that the powers to seize cutting agents would place drug users in danger because of purity issues, by restricting the ability of drug traffickers to cut drugs we anticipate that the new powers will reduce harm by limiting the availability of drugs on the street. Lower availability should increase prices and therefore reduce use. The powers will also attack the profits of drug traffickers, which they use to fund a range of other harmful criminal activities. Moreover, the most common cutting agents are far from harmless. There has been a move away from inactive cutting agents to more dangerous pharmaceutical agents, such as benzocaine, lidocaine and phenacetin. Toxic doses of benzocaine and lidocaine can decrease the oxygen-carrying capacity of the blood and can cause convulsions that mimic the acute toxicity of cocaine. Phenacetin, a painkiller, is no longer used in the UK due to its carcinogenic and kidney-damaging properties.
I hope my response has addressed the issues that my noble friend and the noble Lord have raised and that my noble friend will be content to withdraw her amendment.
Baroness Hamwee
My Lords, the Minister is extremely generous and I consider my wrist to have been slapped. I beg leave to withdraw the amendment.
Terrorism Act 2000 (Code of Practice for Examining Officers and Review Officers) Order 2014
Baroness Hamwee Excerpts(12 years, 2 months ago)
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The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)
My Lords, as noble Lords will know, Schedule 7 to the Terrorism Act 2000 allows an examining officer to stop and question—and, when necessary, detain and search—individuals travelling through ports, airports, international rail stations or the border area to determine whether that person appears to be someone who is or has been concerned in the commission, preparation or instigation of acts of terrorism. Examining people at ports and the border area contributes on a daily basis to keeping the British public safe. Those engaged in terrorist-related activity travel to plan, finance, train for and commit their attacks. Most major international terrorist plots have involved individuals travelling through international borders to plan and prepare their attacks. Schedule 7 is an important part of the UK’s counterterrorism strategy and integral to the UK’s border security arrangements.
The Anti-social Behaviour, Crime and Policing Act, which received Royal Assent on 13 March 2014, made changes to Schedule 7—and to Schedule 8, which provides for the treatment of persons detained under Schedule 7 powers. These changes were made following extensive public consultation in 2012 and are intended to reduce the potential scope for Schedule 7 to be operated in ways that may interfere with individuals’ rights unnecessarily or disproportionately, while retaining operational effectiveness.
The changes made to Schedule 7 include: reducing the maximum period of examination from nine to six hours; extending to individuals detained at a port the statutory rights, already available to individuals detained under Schedule 7 at a police station, to have a person informed of their detention and to consult a solicitor privately; clarifying that the right to consult a solicitor includes consultation in person; ensuring that all individuals examined for more than one hour are formally detained and given their statutory rights; introducing statutory review of the need for continued detention; introducing a statutory requirement for training of examining and reviewing officers; establishing a statutory provision that undertaking strip-searches of persons detained under Schedule 7 powers requires reasonable grounds to suspect that the person is concealing something which may be evidence that they are involved in terrorism, and requires a supervising officer’s authority; repealing the unused power to seek intimate samples— for example, blood or semen; and making express provision that an examining officer may make and retain a copy of information obtained or found in the course of an examination.
Noble Lords will appreciate that our discussions are consequential on the full debates that we had when the Bill was before us. The existing code of practice must be revised to reflect the changes made to the powers by the Anti-social Behaviour, Crime and Policing Act and to make specific provision on training and reviews. I am grateful to noble Lords for attending this debate and beg to move.
Baroness Hamwee (LD)
My Lords, this is consequential on previous debates. It is amazing how much and how quickly all that agonising goes out of one’s head, and one has to remind oneself of the subject of it. I am glad that we have had the chance to consider the draft code of practice and the covering SI. What concerns me is the delay in the introduction of the review arrangements, which I assume is because it has simply not been possible to get the training in place quickly enough. I am not suggesting that the better provisions of the legislation, as they are after the work done on the then Anti-social Behaviour, Crime and Policing Bill, should be delayed. However, could my noble friend confirm that training is on track for the more senior officers, who will be detailed to undertake the reviews, and how supervision will be carried out in the mean time? I notice that the code says that it will be delayed until the relevant provisions come into force. However, in distinction, the paragraphs about audio recording say that there is no requirement to follow the code until next April. That is the time when the review provisions are to come into force, or so we are told. I do not know whether I am seeing a problem where there is none. Perhaps my noble friend has information, although he may not, about the proportion of officers who will be trained to undertake the more senior role.
I shall raise a point again that I raised during the passage of the Bill. Will training cover how officers should deal with the family or other accompanying passengers of the individual who is being held or detained? I think that I mentioned during the Bill’s passage that I had come across an example, which I hope was a rare one, of an individual being told that, if he insisted on waiting for a legal representative, it would be a problem for his elderly mother, with whom he was travelling. In other words, inappropriate pressure was put on him to forgo a right. I am also not clear what happens if, because of detention, passengers miss their flights. I hope that my noble friend can also confirm that the facilities for this work are satisfactory and appropriate. We have talked about short-term holding facilities a good deal, of course.
The code refers to legal privilege, where the restriction seems to be on copying, not on looking at it. You cannot erase something from your head although, obviously, there would be a restriction on using it—but what happens if a privileged document is copied when it should not be?
Paragraph 41 suggests that consultation with a solicitor is invariably not allowed. This is in the examination part of the code, not the detention part. I had thought that it was always allowed, but not necessarily with a solicitor of the individual’s choice. Is that only when the individual is actually detained?
Paragraph 42 states that an examining officer may grant a request that a named person is informed of the examination at his discretion and that:
“Where reasonably practicable, the request should be granted”.
Is it discretion or reasonable practicality?
Paragraph 45, which is where we get on to detention, states that the power may be exercised,
“where the examining officer considers it is appropriate to do so”.
The last bullet point of paragraph 46 states that:
“Detention is an option (during the first hour of examination)”.
Is that bullet point just about the first hour of detention? If I am asking too many questions, I have no doubt that my noble friend will ask to write to me.
However, I will raise a couple of matters which I hope he can confirm now. First, paragraph 7.2 of the Explanatory Memorandum reads:
“Examining people at ports and the border area contributes daily to plan, finance, train for, and commit their attacks”.
I shall not reread that, but when the Minister looks at it, he will realise that some words must be missing. I do not think you detain people in order to help them plan their attacks. I have had a word with the Minister’s officials, and I think they think it is a typo, but quite an important one.
My second question is on similar lines, but I think I am on dodgier ground. It is on annexe A to the code, which explains to the detainee that he is detained to determine essentially either whether he is involved in terrorism or whether he is entering or leaving Northern Ireland. I thought, or perhaps I had assumed without applying much thinking, that it should be “and” rather than “or”. Looking at Schedule 7, Northern Ireland is dealt with in a separate paragraph. Will my noble friend confirm that detention can be solely to establish whether somebody is going into Northern Ireland without any terrorism-related aspect? I am sorry to have slung that at my noble friend. I looked at this rather too close to the time of the debate to give him notice of the rather detailed points which I have just raised.
Lord Rosser (Lab)
I will be giving the Minister a somewhat easier time than he has just been given by the noble Baroness, Lady Hamwee.
I thank the Minister for the explanation of the purpose of this order, which brings into operation a code of practice for examining officers and review officers in respect of the exercise of the powers under Schedule 7 to the Terrorism Act 2000 and under Schedule 8 to that Act where the powers are exercised in connection with Schedule 7, as amended by Schedule 9 to the Anti-social Behaviour, Crime and Policing Act 2014. The code of practice revises the preceding code of practice to take account of amendments made to Schedules 7, 8 and 14 to the Terrorism Act 2000 by the Anti-social Behaviour, Crime and Policing Act 2014.
The Explanatory Memorandum refers to commencing the remaining provisions of Schedule 9 to the 2014 Act this month to coincide with the issue of the code of practice brought into operation by this instrument, with the exception of the provision to which the noble Baroness, Lady Hamwee, referred requiring review of the detention of persons detained under Schedule 7, which are being delayed until next April to allow sufficient time to develop, accredit and train all examining and review officers. I shall pursue some of the points she raised. Will the Minister say how many examining and review officers still require to be trained, how long the training of each officer takes and why the required training has not been completed by this month and has had to be delayed? The need for such training must have been known for some time. Could the Minister also spell out the impact of this delay, in practical terms, including any impact on the provisions of this instrument, which comes into force at the end of this month?
The Explanatory Memorandum also refers in paragraph 4.5 to consultation on this issue having taken place with “National Business Leads”. Perhaps the Minister could remind me who or what this organisation is or these people are.
As the Minister said, the Explanatory Memorandum states in paragraph 7.2 that:
“Schedule 7 is an important part of the UK’s counter-terrorism strategy and key to the UK’s border security”.
The memorandum goes on:
“The changes to Schedule 7 in the Anti-Social Behaviour, Crime and Policing Act are intended to reduce the potential scope for Schedule 7 powers to be operated in an unnecessary or disproportionate way, whilst still retaining their operational effectiveness”.
It then lists the changes made under the 2014 Act. They include ensuring access to legal advice for all individuals examined for more than one hour. In that regard, could the Minister clarify what legal entitlements people have when detained under Schedule 7? Will they have access to free legal advice?
The changes also include reducing the maximum period of examination from nine hours to six hours. The Government and others recently expressed concerns about the numbers going from this country to Syria apparently to be trained and engage in violence in the current conflict, and the possible consequences of that. In the light of concerns about what might happen if and when these people return to this country, with or without others, and what their intentions might then be, is it the Government’s view that all the changes made by the 2014 Act, including reducing the maximum period of examination from nine hours to six hours, actually enhance our ability to minimise the risk of those potential threats? Do the Government believe that the new code of practice provided for in this order—reflecting the amendments made to Schedule 7 to the 2000 Act by the 2014 Act—contribute to rather than potentially diminish our security in the present climate?
I simply conclude by commenting that the Explanatory Memorandum states that,
“the majority of consultation respondents agreed that the revised code clearly reflected the changes made to Schedule 7 powers in the”,
2014 Act. What it is not able to say is that the majority of respondents agreed that in today’s climate all those changes are still appropriate. We will not oppose this order, but I hope that the Minister will respond directly to the points and questions I raised, as well as those of the noble Baroness, Lady Hamwee.
Serious Crime Bill [HL]
Baroness Hamwee Excerpts(12 years, 2 months ago)
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Baroness Hamwee (LD)
My Lords, I am opposing the Question that this clause stand part of the Bill simply to probe. I hope that nothing I say will take the Minister by surprise. I would like to use this opportunity to thank him and his officials for the factsheets that we have had and, in particular, for the Keeling schedules. I discovered that in my pile of copies of statutes, I had a copy of the Proceeds of Crime Act 2002. I then rapidly discovered how out of date that print was, so the material that we have been sent is very useful indeed.
This debate is closely tied to the previous one—still on third parties’ interests. Clause 4 is about receivers, and proposes an addition to the Proceeds of Crime Act involving proposed new Section 10A of that Act, which is inserted by Clause 1 on determining the extent of an interest in property. Essentially, the purpose of this stand part debate is to ask who deals with what, and when. How would all this operate? Who determines whether and when there has been no,
“reasonable opportunity to make representations”,
or whether there would be,
“a serious risk of injustice”?
I am of course quoting from proposed new Section 51(8B) —whereas proposed new Section 10A(1) in Clause 1 provides that the court, not the receiver, determines the extend of a defendant’s interest,
“if it thinks it appropriate to do so”.
My request, therefore, to the Minister is simply for him to explain the procedure.
Lord Taylor of Holbeach
My Lords, it was kind of my noble friend Lady Hamwee to thank those who are supporting me at official level in the Bill; I am supported by a very fine team, and I am grateful. I am also grateful for the fact that a number of noble Lords have taken time to talk to me about the Bill. That has helped us all to get an understanding of a complex measure. Those Keeling measures are needed in order to have the faintest idea about what is going on. Noble Lords will therefore understand the complexity of the matter and why the excellence of my officials is important to me.
Clause 4 deals with the circumstances in which an individual affected by a determination of interest may make representations to the court appointing an enforcement receiver. A court can confer certain powers on an enforcement receiver, including the power to realise property. This power is accompanied by a requirement to allow persons with an interest in the property a reasonable opportunity to make representations to the court.
As we discussed in the previous debate, the basic principle is that an appeal against a Section 10A determination as to the extent of the defendant’s interest in a property will be permitted only where the person was not given an opportunity to make representation to the judge who made the determination, or there is a serious risk of injustice. In cases where there is no receiver, the Court of Appeal will hear the appeal in the normal way. In cases where the court appoints a receiver, however, it is not bound by the determination and can hear representations. It is in effect hearing an appeal.
As interested third parties will generally have had an opportunity to make representations to the court prior to it making a determination of interest in property, the changes made by Clause 4 limit to certain circumstances the right of such parties to make further representations to the court appointing the receiver. As I have explained, it is not a right of appeal at large and does not allow representations to be made that are inconsistent with a determination, except under the two circumstances I described: first, when the affected party was not given a reasonable opportunity to make representations to the Crown Court before it made its determination; and, secondly, where the court considers that the determination would result in a serious risk of injustice to the person. These two circumstances mirror those in Clause 3, which set out the grounds under which the Court of Appeal may hear an appeal against a Section 10A determination.
So that we are in no doubt as to what it means, the “serious risk of injustice” will include an instance where an innocent third party with no links to criminality has an interest in a house that is to be sold to satisfy a confiscation order against a defendant. The innocent third party may have been out of the country when the determination was made and, consequently, had not received notification of the hearing. By contrast, it would not include instances where there has been an inconvenience to a third party—for example, if they had to move out of rented accommodation that was to be sold to satisfy a confiscation order. A serious injustice is not anticipated to be such a rare instance that it would be considered to be an exceptional circumstance. It will be a matter for judicial discretion, based on the facts of the individual case.
The clause enables an interested third party to make representations where their interest in the property came to light only after the Crown Court had made its original determination. Subject to the court’s consideration of any such representations, and to the outcome of any appeal, a determination made by the court is binding on the receiver. As I have said, in cases where there is no receiver appointed, any appeal will be dealt with by the Court of Appeal. This represents an equitable balance between the effective enforcement of confiscation orders and the important rights of third parties. On that basis, I beg to move that Clause 4 stand part of the Bill.
Baroness Hamwee
My Lords, that is very helpful. I commented to my noble friend when we discussed Part 1 that flow-charts might be quite useful. As he has described the sequence of events, it occurs to me that flow charts or some sort of fairly straightforward step-by-step explanation would be particularly helpful to third parties who get caught up in these proceedings. A defendant will be likely to have legal representation and advisers who can assist with what happens at what stage. A third party may suddenly find that he or she is affected and they ought to be able to find out what steps are available to make representations and how they should be made, without necessarily having to go to the expense of instructing lawyers themselves.
The right thing to do would be to make this user-friendly to people, about whom we should not assume any degree of guilt or their being reprehensible at all. I just use this opportunity to air that thought and of course I am not going to resist Clause 4.
Baroness Hamwee
Baroness Hamwee
My Lords, the first amendment is an amendment to Clause 5, which will introduce a new Section 11 to POCA. The proposed new Section 11(8) provides for the prosecutor to have an opportunity to make representations regarding the time for payment. Clearly, the defendant must have an opportunity as well. I tabled the amendment simply to ask my noble friend whether he can explain when that opportunity would be, and whether he can say whether proposed new Section 11(8) concerns the prosecutor’s response to the defendant’s representations, which are covered elsewhere—in existing legislation if not in the Bill. I beg to move.
Baroness Williams of Trafford (Con)
My Lords, Clause 5 includes provisions designed to minimise delays in the confiscation process. This is achieved by amending Section 11 of POCA to make it crystal clear that the full amount that is ordered to be paid by the court must be paid on the day on which the order is made, unless the court is satisfied that the defendant is unable to do so, for example, because they need time to realise their property.
The maximum additional time allowed for a defendant to pay their confiscation orders has been reduced from 12 months to six. There will also be a further restriction on the length of an extension of the time to pay limiting it to more than is necessary, for example, to realise funds from a specific asset.
My noble friend has indicated that this amendment is designed to tease out whether the defendant has a right to make representations to the court about the time for payment. She has rightly pointed out the fact that the proposed new Section 11(8) expressly confers on the prosecutor the right to make representations, but no such express right is conferred on the defendant.
I can assure my noble friend that the defendant will indeed be able to make representations to the court. However, in view of the way in which the process will operate, it is not necessary to provide for this in the legislation. As I have explained, the default position is that a confiscation order will be payable on the day that it is made. This is the current position. We do not believe that it is impractical. Certainly, for lower value orders, there is no reason why the defendant cannot visit the fines officer and discharge the confiscation order before leaving the court.
The court will not be expected to allow additional time for payment on its own motion. In practice, the court will only be in the position to consider making an order under proposed new Section 11(2) of POCA to extend the time given to the defendant to pay their order if the defendant has made representations to the effect that they need more time to pay their order or part of it. This will be done as part of the confiscation hearing.
Similarly, under proposed new Section 11(4) of POCA, it will be for the defendant to make an application to the court to extend the period allowed for payment. It is implicit in making such an application that the defendant will set out his or her arguments for being afforded more time to pay the confiscation order. New Section 11(8) is intended to ensure that the prosecutor has the right to respond to the case made by the defendant. Having heard the explanation, I trust that my noble friend will agree that the amendment is unnecessary.
Baroness Hamwee
My Lords, the noble Baroness will know that I was concerned about the very tight provisions of new Section 11. She has explained that the defendant will have an opportunity to make representations at the time. That is reassuring, because it is almost never possible to realise an asset on the day that an order is made and it is often not even possible to transfer money immediately. What she has said about the processes is helpful and I am grateful to her for her explanation of proposed new Section 11(8). I beg leave to withdraw the amendment.
Lord Deben (Con)
My Lords, I will insert a single sentence here, although it may be rather a long one. I am afraid that my noble friend may have great difficulty in doing what the noble Lord suggests because he will come into conflict with a deep and entirely erroneous Treasury view about hypothecation. For all my political life, I have fought the battle for hypothecation, which is the only way we will get people to accept a whole range of things in future.
It was extremely successfully done on the landfill tax, but the money was then stolen by the incoming Government, who did not understand. The Treasury had hated it in the first place; it had been forced through by the then Chancellor of the Exchequer, my right honourable friend Kenneth Clarke. Immediately after he went, the Treasury mandarins got the money back again because they do not like someone else deciding how the money shall be spent. I beg my noble friend to stand firm against that wholly unacceptable attitude.
The Pope was right, in the 1920s, when he talked about subsidiarity being the basis of democracy. He was, of course, attacking fascism and communism. I am afraid that bureaucratism is just as damaging in always trying to concentrate decisions about how money shall be spent in the hands of the Treasury. I think that the more people who make decisions about how it shall be spent, the more we will be able to make democracy work. Obviously, there have to be restrictions and some overall view, but I hope that my noble friend will take this opportunity to fight like a tiger for an essential part of any sensible democracy: hypothecation. Hypothecation should be a tick rather than a cross when something such as this is put forward.
Baroness Hamwee
My Lords, I wonder whether Hansard will be able to resist its usual refusal to let us put lots of “ands” and “buts” in very long sentences.
I have been trying to think of something to say in Latin to the noble Lord, but my A-level Latin is too long ago for me to be able to do it. However, he is probably asking your Lordships the sort of question to which we should answer yes. I remember that from the very early days of my Latin education.
I am certainly on the yes part of the spectrum of answers to this, in principle. I think a large part of the problem is what I unkindly call “turf wars” between the MoJ and the Home Office about who should have the money when the proceeds are recovered. I realise it is more complicated than that.
On the wording of the amendment, I wonder whether it is possible to identify the communities and neighbourhoods affected in an effective and straightforward manner, if at all. For instance, on the proceeds of crime of someone high up in an organised crime organisation dealing with drugs, can you pin down the communities and neighbourhoods affected in the way suggested? I am very attracted to money going towards crime prevention and assisting those who are affected by crime, but I am just not quite sure about this provision. However, the questions the noble Lord asked the Minister about ARIS and the wider questions about how the proceeds of crime when recovered are applied are very important.
Lord Phillips of Sudbury
My Lords, on the face of it, this is a beguiling amendment, not least because of the way the noble Lord, Lord Harris of Haringey, moved it by giving an example of helping a primary school understand a bit more about the way our complicated world works. There is no one in this House who defers more than me to the need for this country and this Parliament to help our citizens have a better idea of what it is to be a citizen in our barbarically complicated society.
I concur with my noble friend Lady Hamwee, and I think there is perhaps another problem with the wording of the amendment in that it simply talks about,
“reinvestment in the communities and neighbourhoods affected”,
which seems as wide as the Atlantic Ocean and gives no reinvestment guidance about what, why or wherefore.
I have a deeper problem with the amendment. We heard the noble Lord, Lord Rosser, give the example of $20 billion to $40 billion that should be recovered from frauds in developing countries and is not. We heard other examples from my noble friend Lord Taylor of Holbeach of the abject failure of our current laws to achieve their purpose. I am not in favour of doing anything to diminish the resources available to the prosecutorial authorities for seeking to make more as regards compliance with the manifold laws we already have. It is a sort of scandal that we go on passing law after law with the most perfect of purposes, but then fail utterly to give those charged with implementing those laws the wherewithal to do that.
My noble friend Lord Taylor of Holbeach talked with some satisfaction of six advisers. I have to tell him that when you are up against the big, bad guys, a team of six will look rather small, and he is talking about six to cover the whole landscape. Therefore my reservation about the amendment is simply that if its effect is to reduce at all the current grotesquely inadequate resources that go toward compliance, I am afraid that I am not for it.
Baroness Hamwee
Baroness Hamwee
My Lords, this is a short point because it is just a short question. Amendment 5 is to Clause 8 and Amendment 26 is to Clause 28—the equivalent Northern Ireland provision. Amendment 5 seeks to leave out new Section 25A(2)(a) of POCA, which allows the court to discharge an order in the case of a deceased defendant where,
“it is not possible to recover anything from the estate”.
My question is: is this not covered by new Section 25A(2)(b), which says that a discharge could be made where it is not,
“reasonable to make any attempt … to recover anything”?
It seems to me that if it is not possible to make an attempt, it certainly would not be reasonable. That is my question. I beg to move.
Baroness Williams of Trafford
My Lords, Clause 8 deals with the discharge of certain unpaid confiscation orders and applications to vary unpaid orders down in value. Despite the best efforts of law enforcement agencies, some confiscation orders are uncollectable and sit on the books of Her Majesty’s Courts and Tribunals Service, accruing interest at 8% a year.
Clause 8 provides that the court will be able to write off unpaid confiscation orders where the defendant has died and it is not possible or reasonable to seek payment of the order from the defendant’s estate: where, for example, there are no assets remaining in the estate. Clause 28 makes the same provision for Northern Ireland.
In Clauses 8 and 28 there are two cases where orders may be written off: first, where it is impossible to get any money out of the estate; and, secondly, where it is not reasonable to make any attempt or further attempt to get money out of the estate.
These amendments suggest removing the case for discharging orders where it is impossible to get any money at all out of the estate. My noble friend has indicated these amendments are essentially designed to probe what would be covered by a first set of circumstances for discharging an order that is not covered by a second set of circumstances.
My noble friend is correct to say that there is certainly a significant degree of overlap between the two. If there are no assets of any note in the estate, it would not be reasonable to make an attempt to recover moneys owing to discharge a confiscation order. Equally, it would not be possible to recover anything from the estate.
That said, I believe it is helpful to retain both cases. The first case where it is impossible to get any money at all out of the estate could be said to be a subset of the second case, where it is not reasonable to make any attempt or further attempt. However, there may be circumstances not covered by the second case. It is important that this clause should encompass all possible scenarios to ensure uncollectible orders may be discharged.
I hope that, in light of that explanation, my noble friend will be content to withdraw her amendment.
Baroness Hamwee
My Lords, I am not sure that I do understand that it would ever be reasonable to make an attempt to recover something where it is not possible to recover it. I am not going to make a fuss about it. However, when I hear about 8% a year, I think I need to review my investment strategy. I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, this amendment is to Clause 11, while Amendment 27 is an equivalent amendment to the equivalent Northern Ireland provision, Clause 13(1). The Minister has already referred to the change from “reasonable cause to believe” to “reasonable grounds to suspect” in the context of the exercise of restraint order powers. The question, obviously, is designed to explore why there is a lower hurdle when we are talking about investigation only, not proceedings.
I appreciate that the later part of Clause 11 requires reporting by the court, although the court can decide not to require it, and that proceedings have to be started within a reasonable time. I am assuming, but perhaps the Minister can confirm this, that a defendant can apply for the restraint to be lifted on the basis that reasonable time has passed and there are no proceedings, and that “reasonable time” is assessed on a case-by-case basis and is not a fixed period. However, it occurs to me that the provision might be giving rise to additional litigation because there are uncertainties around this.
Temporary asset freezing—which is what this is, essentially—could be for quite a long time. We are talking about someone who is not a convicted criminal and may not yet even be a defendant. There could be an impact on that person’s dependants and their business. It is, therefore, a serious matter and I look forward to an explanation of why the Government have chosen to lower the hurdle and the protections that will be in place. I beg to move.
Lord Taylor of Holbeach
My Lords, I am pleased that my noble friend Lady Hamwee has raised these issues. We do not take the impact of restraint orders lightly and we fully understand her points. However, these orders effectively freeze property to prevent it being dissipated before a confiscation order is made. This is important in effective use of the Proceeds of Crime Act. The property is then available to sell, which helps to satisfy a confiscation order which may subsequently be made.
The intention of the Proceeds of Crime Act was to introduce the ability to obtain a restraint order as early as possible in the investigation to remove any possibility that a criminal will become aware, as a result of the investigation, that their assets are at risk and so move or hide them. We have been discussing this for much of the afternoon. Restraint orders are, therefore, available from the earliest stages of a criminal investigation. As I have already said, and as my noble friend is aware, the current test for obtaining a restraint order in all circumstances is that there is a “reasonable cause to believe” that the alleged offender has benefited from his criminal conduct. This is a proportionate test in circumstances where a defendant has been charged and is being prosecuted. In this case there will be available evidence to meet the test of “belief”.
However, the operational experience of our criminal justice colleagues in relation to this issue has shown that, at the early stage of an investigation, it is very hard to prove belief. The reality is that at that stage of an investigation there may be limited evidence, simply because the investigation has not yet had time to gather it. It is notable—as the noble Baroness, Lady Smith, has said—that the number of restraint orders has fallen since 2010-11, despite the Government’s push for more asset recovery action. The number of restraint orders obtained had been increasing and reached a peak of nearly 2,000 in 2010-11 but has dropped every year since then, with fewer than 1,400 restraint orders being made last year.
Delaying the obtaining of a restraint order until there is sufficient evidence to meet the “reasonable cause to believe” test can provide suspected offenders with an opportunity to dissipate or hide their assets to protect them from seizure. The amendment we are making to POCA in the Bill therefore revises the test for restraint in the earliest stages to “reasonable grounds to suspect”—I emphasise “suspect”—that the alleged offender has benefited from his criminal conduct. It is also of note that the amendments include a requirement for the judge making the restraint order to set a date for the matter to be returned to the court so that it can consider whether sufficient progress has been made with the investigation or give reasons for not arranging such a hearing. This reflects current practice of the court when it makes a restraint order in the absence of the person who will be the subject of the order. Making the practice mandatory will ensure appropriate judicial oversight of restraint orders made during a criminal investigation.
It is important that the Committee understands that Clauses 11 and 31 are not breaking new legal ground. “Suspicion”, as opposed to ‘belief’, is a test in other similar matters. Within POCA itself, a judge has to be satisfied that there are reasonable grounds for suspecting that a defendant has benefited from their criminality in order to issue a production order. Also, under the Police and Criminal Evidence Act 1984, a police officer may arrest without a warrant anyone whom he or she has “reasonable grounds for suspecting” has committed an offence. So, at the early stages of a criminal investigation, it is appropriate that the court uses the threshold of suspicion, rather than belief. We think that this is a direct parallel supporting the amendment we are seeking to make in Clause 11.
This was one of the issues considered by the Joint Committee which undertook pre-legislative scrutiny of the Modern Slavery Bill. In its report, the Joint Committee made the following comment:
“It is imperative that law enforcement authorities should be able to freeze relevant assets at the earliest possible stage in an investigation, and rarely, if ever, more than 24 hours after arrest. We therefore strongly recommend that the test for obtaining a restraint order be amended to make it less stringent. We note that the Government has already committed to reducing the test from ‘reasonable cause to believe’ to ‘reasonable suspicion’. We approve of this formulation.”
I hope the Committee will do so too.
My noble friend Lady Hamwee asked what would happen if a defendant were able to make an application to a court to lift a restraint order. A court may discharge a restraint order, on application, where the investigation has not progressed to its satisfaction. That freedom is available to a defendant, who may also apply to the court to vary a restraint order. It must do so if the investigation has not progressed satisfactorily. I hope that noble Lords will be happy with my explanation and that my noble friend will be content to withdraw her amendment, in the light of my comments.
Baroness Hamwee
My Lords, I am glad to hear about the judicial discretion which might be applied. I would like to think that the reduction in the number of restraint orders or applications for them is because of a problem with the legislation and not something inherent in the new arrangements with, for instance, those concerned not directing their minds to the lower test. That can always be an issue and changing the test does not change it. I am, of course, happy to beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
Amendment 19 would remove paragraph (b) of new subsection (7A) in Section 67 of POCA. Amendment 20 would make an order under this new subsection (7B) an affirmative order. Having had the benefit of a discussion with the Minister, I know what is meant by the phrases,
“money that is represented by”,
and “may be obtained from” as distinct from money actually obtained from. It was an interesting discussion, but it would useful to have the information on the record.
On the order which is required, what is proposed by the Government is quite significant, and it seems to me that an affirmative order would be more appropriate in this case. I beg to move.
Lord Taylor of Holbeach
My Lords, Clause 14 amends Section 67 of the Proceeds of Crime Act with a view to speeding up the confiscation of funds held in bank accounts. In addition, the clause enables, through secondary legislation, the powers in Section 67 to be updated to include other realisable cash-like financial products, such as share accounts and pension accounts that may be held by banks or other financial institutions.
Currently, seizure powers under Section 67 of POCA apply only to money in its traditional form held in an account with a bank or building society. Money can also take the form of, or be represented by, innovative financial products. This includes digital currencies whereby the user obtains goods or services by virtual means rather than a physical or electronic exchange of funds.
Currently, it is not possible to realise such instruments for the purposes of seizure under Section 67 of POCA. The extension of powers to encompass other financial products may require modifications to Section 67 to provide for such financial instruments or products to be converted into cash. The new subsection (7B) of Section 67, inserted by Clause 14(3), provides the power to make such modifications.
Clause 14(3) also applies to money that may be obtained from a financial product that is something other than a standard current or savings account. I shall give examples of this, and I am grateful to my noble friend for giving us the chance to put this on the record. An example of such a product would be a pension plan that has yet to mature but will pay an annuity and a lump sum on retirement. Other examples could include a share account or a virtual currency such as Bitcoin. Essentially, therefore, the clause provides for the capture and realisation of instruments with an economic value. I hope that that explains to my noble friend the use of the term “represented by” a financial instrument or product in Clause 14(3).
By virtue of Clause 14(5) an order made under new Section 67(7A) of POCA will be subject to the affirmative procedure. New Section 67(7B) simply amplifies the scope of the order-making power in new Section 67(7A)—it is not a second free-standing order-making power. I hope that I have made that clear. Accordingly, it is not necessary to refer to new Section 67(7B) in Clause 14(5). That being the case, I hope that my noble friend will agree that her amendment is, strictly speaking, unnecessary. However, it has served a useful purpose in that I have been able to explain the purpose of the provisions in Clause 14. In the light of that explanation, I hope that my noble friend will be content to withdraw her amendment.
Baroness Hamwee
My Lords, I am afraid that it occurred to me only while I listened to my noble friend’s explanation that I have not pursued the issue, where it is digital currency or an annuity under a pension plan, of how that will be assessed in cash terms at the point when the cash needs to be calculated. I assume that that must be somewhere else in the legislation—probably in existing legislation. However, that is an issue. We heard recently about how bitcoins are fluctuating in value. Therefore the point at which the calculation is made is very important. Also, we all know that there are issues around the value of an annuity. Therefore I realise, listening to my noble friend, that there is a lot more to this to be thought about than I am afraid I had thought about. Of course, I will beg leave to withdraw the amendment at this point, but—
Lord Taylor of Holbeach
I will willingly write to my noble friend. I am not in a position to be able to tell her the process of valuation of those things from the Dispatch Box today, but I am sure that it would be of interest to the House to know how those valuations occur. I do not suppose that that is the only circumstance in which those things have to be valued.
Baroness Hamwee
My Lords, I am grateful for that; I did not seek to put my noble friend on the spot today. However, as I said, there is a lot more to that than might appear in the Bill. I beg leave to withdraw the amendment.
Student Visas
Baroness Hamwee Excerpts(12 years, 3 months ago)
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Baroness Hamwee (LD)
My Lords, I am sure that the Minister shares my and many people’s anger and shame that so many innocent students have been duped and have had cheating promoted to them as if it were a British value—which clearly it is not. Can the Minister tell the House whether the individual students caught up in this will have a chance to retake the tests before immigration action is taken against them? Can he also say what positive steps the Government are taking to promote the sector, which we all agree is such an important export? We know that a factor in students choosing to come and study here is whether they feel welcome or not.
Lord Taylor of Holbeach
I will start with the last suggestion made by my noble friend because it is really important. Despite having to deal with this problem— I think the whole House will understand why the Government have had to deal with this problem—we recognise the enormous asset that we have in the higher education and further education facilities in this country. They are global assets and we want them to be available to the world. But they must be conducted under rules which reflect the fact that people come here to study and not as a short cut to involvement in working.
We have had a lot of debates in the House. I think that some of the best have been on this subject, but sometimes I have been the only person saying that students should remain within the net migration figures. I hope that noble Lords who thought differently will be thinking along my lines now and seeing how important it is. I have emphasised that we want the brightest and the best to come here, but they should do so with their sponsorship in order and without the criminality that has been revealed by this particular investigation.
Serious Crime Bill [HL]
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Baroness Hamwee (LD)
My Lords, I confess that I am at a loss. For once, I am not struggling to ask apparently innocent questions as a painful way of masking criticism. My scepticism has also been confounded because so often legislation is added to the statute book when the offences have already been defined and measures have been put in place. I am not a fan of using legislation to promote a message, but the Bill does seem to be about filling lacunae, and I congratulate the Minister and the Home Office on that.
That does, however, make it rather difficult to find a thread running through it on which to base my remarks today. No doubt a theme common to all the issues covered will be—as has already been said—that legislation cannot do everything and that good practice is fundamental. I know that the House will do what it does so well, which is to focus on workability. I am very glad that the Bill has started at this end and I thank the Minister for his introduction.
My noble friend Lord Thomas of Gresford talked quite a lot about tracking down and recovering the proceeds of crime in the context of legal aid. He kept saying, “Just find the money”. The Bill cannot assist investigative skills and I am aware from another part of the legal forest—matrimonial work—of the resourcefulness that some people use to conceal their assets. HMRC is pretty good at ferreting out where assets have been hidden.
I am a bit uneasy about using taxation as a sanction—perhaps this is the “Al Capone” clause. I am not entirely sure that I understand the tax provisions. Is there to be a tax assessment when the source of the income cannot be identified but comes under the spotlight as perhaps coming from criminal assets—my civil liberties antennae are twitching slightly—or are we levying a percentage at the marginal rate on income rather than on the whole of the income-producing asset? We will ask questions in Committee. While my antennae are still active, I note from the material I read from the Home Office that the Crown Court must determine whether the defendant has a “criminal lifestyle” and is to apply the balance of probabilities in assessing whether there is “general criminal conduct”. I can see some questions arising from this.
I welcome the priority given to the victim surcharge and compensation, and the use of the assets. I was reminded by a case study in the material provided by the Home Office—for which I and other noble Lords will be grateful—that we are not dealing with the proceeds of crime in a vacuum: it is the crime itself which we seek to reduce or eradicate. That case study could also be a case study from material for the Modern Slavery Bill. It is the underlying crime that makes these provisions so important. But that will not stop us examining, for instance, the Secretary of State’s powers to amend provisions regarding default sentences; and Clause 14, which allows the Secretary of State to amend primary legislation. I was guilty of the perhaps unworthy thought that parliamentary counsel had simply not had enough time to produce the substantive provisions which the Government have in mind. If not, do the Government intend to produce a draft order so that we can understand what they have in mind here?
As for organised crime groups, the current money-laundering rules are a burden on professionals, and Part 1 might add to that. I am aware that another policy aim of the Government, of course, is deregulation. We have had briefings, from the Law Society and the Institute of Chartered Accountants in particular, about Clause 41 and organised crime groups. Prejudice is often expressed against fat cat lawyers. There may be some, although many are very lean, and there may be some lawyers and accountants who are not straight, and I do not defend them. However, there seems to be a lot of justified concern about how this clause will work. We are told that there has been no prior consultation, so the most important question for now is what plans the Home Office has to engage in discussion with the professional bodies. Everyone has an interest in this provision working well.
Before I received the briefings, I was concerned about things such as the burden of proof, serious crime prevention orders as prevention without a conviction, and the definitions. Like the noble Baroness, Lady Smith, I thought that the meaning of the term “helping” in the context of criminal activities could be taken to absurd extremes. Perhaps the question about gangs is how successful the gang injunctions have been so far and their relationship with joint enterprise. A criminal group seems to be three-plus, so more are needed for joint enterprise. Only 25 of the 33 local authorities who are in the Ending Gang and Youth Violence programme responded to the data request. Is this an indication that they are under enormous pressure and are underresourced, because this is described as a “potentially beneficial tool”? Intriguingly, we are told that gangs can disappear from the radar in one area and reappear in another. Do the Government intend to produce guidance on what enables those people to be identified as being the same gang? We will deal with what constitutes harm to children. This made me wonder whether gang-related violence included psychological harm. I am thinking of vulnerable youngsters—particularly how girls may be used by gangs, becoming part of them but being victims of them at the same time.
I am delighted that the noble Baroness, Lady Meacher, is taking part in this debate, because she always has such sensible things to say about drugs policy and drugs legislation. I accept the need to deal with cutting agents; their use is pernicious in several different ways. The responses to the Government’s consultation on this mentioned legal clarity, but I can see evidential issues raising their heads as well. I wondered about the equipment used for cutting agents. Do they—I am sorry, I cannot now avoid the pun—warrant attention as well as the agents themselves?
As regards children, the House sometimes has a tendency to divide into sort of a Bill half full/Bill half empty approach. It is very likely that the part of the Bill on the protection of children will attract proposed additions, as it gives an opportunity for colleagues to pursue their often very justified concerns. My noble friend Lady Walmsley, who has been unable to change her arrangements for this afternoon to be here, already has an amendment, agreed by the Public Bill Office to be in scope, that would make it a duty for people who work in regulated activities with children or vulnerable adults and who suspect abuse to report it to the local authority.
The change to the Children and Young Persons Act 1933 to spell out that harm includes psychological harm is the result of sustained work by many NGOs and the Private Member’s Bill from my honourable friend the Member for Ceredigion. It is blindingly obvious to us in the year 2014, but the same issue of what is meant by harm arises in other legislation. It has been addressed recently in the context of domestic violence but outside statute. In that and other contexts, I confess that I am concerned that psychological and emotional damage may be regarded as excluded by implication, since it is to be explicitly included in this case.
Noble Lords will have received briefings from children’s organisations on other possible changes to the 1933 Act. I find quite persuasive the argument that the term “wilful” to describe actions is very narrow. Again, I wonder about guidance and the CPS’s view. It is important that the language that is used carries its natural meaning, so that it is easily used by practitioners.
There is also the issue of the age bracket for victims, possibly taking it up to 18. I doubt that anyone who has had more than fleeting contact with teenagers could argue that they are more resilient than younger children, as has been said. I, too, was horrified by what I read in our briefing about the paedophile manual. I was surprised that it needs specific provision, but for the moment I will just ask whether internet service providers have been consulted on Schedule 3.
All the legislation in the world will not deal with the deeper-rooted cultural issues surrounding female genital mutilation. The Government, I know, are very well aware of that and have been very determined in their approach. I count the Member for Hornsey and Wood Green as a real friend and a long-standing colleague as well as an honourable friend, and I can vouch for the activity that she, among many others, has undertaken.
I end with a positive story. I was at a meeting on Thursday, in the margins of the Global Summit on Ending Sexual Violence in Conflict, with a number of Members of other parliaments. A representative from Portugal recounted a tale of the boyfriend of a potential victim protesting and campaigning against the abuse. In a gloomy subject, I thought that was a cheering report.
There may be a common thread to this: that practice is important and that being alert to what technical changes are indeed necessary to implement existing policy is something on which we can profitably use our time.
Passport Office
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Baroness Hamwee (LD)
My Lords, the government website still shows the waiting time as being generally three weeks. Are the Government considering putting updated news on that website so that the public are aware of the position? The Post Office is another route to obtaining travel documents. Is it experiencing extra demand? Has there been an impact on Post Office services and on its level of work?
Lord Taylor of Holbeach
I cannot answer with specific information on the latter point, but I can say that, even at this point, 97% of passports have been issued within three weeks and 99.24% have been issued within a four-week period. None the less, because of the large number of applications, small percentages can mean large numbers of people whose lives have been inconvenienced. That is why the Passport Office is working seven days a week and efforts are being made to ensure that people are not inconvenienced. The Home Secretary’s Statement made that quite clear.
Queen’s Speech
Baroness Hamwee Excerpts(12 years, 3 months ago)
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Baroness Hamwee (LD)
My Lords, I thought that after about 50 speakers, a change of pace might be welcome. I had planned to read to your Lordships the poem “Deportation”, by Carol Ann Duffy. The time constraints mean that I can only give noble Lords a taster:
“Love is a look
in the eyes in any language, but not here,
not this year. They have not been welcoming.
I used to think the world was where we lived
in space, one country shining in big dark.
I saw a photograph when I was small.
Now I am Alien”.
We do not have an immigration Bill; we will have rules—we seem to get new Immigration Rules almost every week. I will continue to raise the problems of restrictions on family migration, although not as effectively as the Poet Laureate. I note the irony of those restrictions, and how families are split up when according to the Queen’s Speech we are to have tax benefits for married couples—support for marriage.
Without a Bill, there is still a lot to be said about immigration. From the negatives, last week a report from the Chief Inspector of Prisons said that deportees are treated as commodities by security staff; and from the positives, recent reports on immigrants’ contribution to the economy have come from the Office for Budget Responsibility, the OECD, and the Institute for Fiscal Studies.
By way of legislation we have the modern slavery Bill, to which many noble Lords referred, which is one of those Bills which we will all welcome and strive to make even better. The focus, as other noble Lords have said, has tended to be on the trafficking of children and young women for sexual exploitation. I agree with the points made by other noble Lords that it is important to extend our focus to all victims: domestic workers, boys and young men, vulnerable people, and people who have left the services. I very much welcome the comments made by the pre-legislative scrutiny committee on supply chains.
Of course, legislation is not everything, as other noble Lords have said. We need to increase support for victims as witnesses and to help them rebuild their lives. I very much liked the phrase of the right reverend Prelate the Bishop of Chelmsford that we need affirmation to live well. There is the functioning of the national referral mechanism, the work of witness protection, the work and resources necessary for social services and for the criminal justice system—in that case, how it operates—and not criminalising victims. I know that the Government are very well aware of those and other issues. The challenge is to achieve changes in practice. The right reverend Prelate the Bishop of Derby asked whether we can afford all this, or at least said that that would be the question. Is not the question: can we afford not to focus on this?
This week the Government are hosting the Global Summit to End Sexual Violence in Conflict—an admirable initiative. Some of the issues to which I have referred are the international ones found in different contexts, including the appropriate response by authorities and services, identifying victims as victims and treating them appropriately. As the right reverend Prelate the Bishop of Carlisle said, I have decided to refer only to the Bishops’ Benches in my speech.
We recently debated problems police forces have in recognising victims of domestic violence—there is a read-across there. The Howard League recently reported on children within the criminal justice system. It told us that a child was arrested every four minutes in the past year in England and Wales and recommended a reduction in arrests for trivial matters. That is a matter of appropriate responses.
It is ten to nine now and we will be back in less than a week to debate the Serious Crime Bill. I will not say more now than that I welcome, as others have done, the statutory recognition of psychological injury to children, putting it on the same footing as physical injury. It is extraordinary that it needs to be spelt out but clearly it does, as was done—again I mention domestic violence—some months ago.
It seems it is also necessary in terms of legislative lacunae to add to our laws on female genital mutilation. I cannot help noting that this is just a few days after the deportation of Afusat Saliu and her daughters whom she was seeking to protect from FGM in Nigeria.
I had planned to ask the Minister about the extremism task force which started last year after the Woolwich murder to such fanfare and then went very quiet. However, there seems to have been something of a coda or possibly even a new movement in that. It is extraordinarily important to be open-minded and imaginative in addressing the issues around extremism and radicalisation. I guess that many NGOs have less baggage than government institutions in the eyes of the individuals at risk. The NGOs need to be supported.
I wonder whether the time has come to consider extending the role of the independent reviewer of terrorism legislation whose experience might well be used more proactively. Above all we need to talk—Northern Ireland showed us that at home. There must be so many different personalities among the boys and young men at different stages of their development—such a range of reasons for their conduct. Legislation, in itself, will not persuade them to buy into the rule of law. We must be prepared to take risks. It was brave of the American Government to exchange prisoners they were holding for the US soldier whom they retrieved last week.
My Lords, I have one more stanza:
“They are polite, recite official jargon endlessly.
Form F. Room 12. Box 6. I have felt less small
below mountains disappearing into cloud
than entering the Building of Exile. Hearse taxis
crawl the drizzling streets towards the terminal.
I am no one special”.
Crime: Domestic Violence
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Baroness Hamwee (LD)
My Lords, Refuge has been mentioned, so perhaps I should declare an interest as a past chair. I learnt a great deal from Sandra Horley.
Sticks and stones may break my bones but words will for ever haunt me, perhaps break my spirit and even my mind. The impact of non-physical behaviour is often less evident to other people. “How did you get that bruise?” “Oh, silly me, I walked into a door that I didn’t see was open”—not “I didn’t understand and escape the dynamics of a dysfunctional relationship”. Both are manifestations of controlling behaviour, as other noble Lords have said, and have a great deal in common, including the ever present fear of when it will break out, reducing the victim’s capacity to cope with it, being demeaned and diminished.
It is not just words, though. The briefing which we have received from the organisations just mentioned by my noble friend Lady Jenkin of Kennington listed relevant behaviours. Reading that list, I thought, “Where have I seen some of these before?”, such as sleep deprivation and the use of extreme stressors such as rape. There are a number of behaviours in this list which, if they were undertaken by someone in an official capacity, could well be regarded as torture under international law.
Domestic violence has risen up the public consciousness but, as the HMIC report said, the overall police response is not good enough. It talked about it being a priority on paper but, in the majority of forces, not in practice. One of the factors identified was officers lacking skills and knowledge. It is easy to understand how much more straightforward it is to identify a single act of physical brutality than insidious and brutal courses of conduct, still less when this is not immediately evident with a physical outcome. I do not underestimate the problems of evidence, and I agree with quite a lot—not everything—that my noble friend Lord Lester said, particularly about the use of the existing law. Let us use what we have got unless it is clearly inadequate. The work on stalking the year before last indicated that there was an inadequacy, and led to a change in law. However, if it is not inadequate then I for one am not enthusiastic about some sort of duplication. However, having conduct identified and tagged as criminal is very important, as my noble friend Lord Paddick has said.
One of the recommendations of the HMIC report was about the views of victims as an essential element in monitoring police effectiveness. The report said that the Home Office should ensure that the views of victims of domestic abuse are incorporated routinely and consistently into national monitoring arrangements. I ask my noble friend the Minister—if he cannot answer it today perhaps he could write; one has picked this up in thinking about it and he may well not have a briefing on it—how are the views of victims to be included in the monitoring process if they do not report? How do you find the victims? How do you get at their views?
One of the things that have helped raise awareness over a period of perhaps 20 years is when victims’ experiences are made real in fiction through popular culture. Those of us whose soap of choice is “The Archers” are witnessing one character’s charm turning into control at the moment. I congratulate those who work in the media and who bravely—because this is not always welcome—include such storylines. However, all this is important, not just for raising general public awareness but because it gives victims the confidence to identify, recognise and articulate that what they are suffering is not normal; it is abuse, and it is a crime.
Immigration Bill
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Baroness Royall of Blaisdon (Lab)
I wish to speak on this amendment—forgive me for being so tardy—as I just wish to place certain things on record.
I support the amendment tabled by the noble and learned Baroness, Lady Butler-Sloss, and am deeply disappointed and irritated by the amendment tabled by the Minister. While the noble Lord has just set out his reasons for not accepting the original amendment tabled by the noble and learned Baroness, the only reason given by the House of Commons was one of financial privilege. As has been said on other occasions, when the Government use financial privilege as the reason for rejecting amendments in the Lords, it too often looks as though the Government simply do not have sufficiently strong arguments to counter the just and moral reasons given by the Lords. Yes, I well understand that it is the Speaker who decides whether or not financial privilege should be applied, but the Government could have asked the House to waive financial privilege and chose not to do so.
This is frustrating for us but, more importantly, it has real implications for the small number of vulnerable children who are subjected to the evils of trafficking. These children have suffered the worst kind of traumatic experiences and they are desperately in need of a guardian, appointed on a statutory basis, to accompany them,
“throughout the entire process until a durable solution in the best interests of the child has been identified and implemented”.
On the subject of financial privilege, I ask the Minister to provide us with the Government’s computation of the predicted costs of the amendment that was rejected in the Commons.
Again I place on record my thanks for the extraordinary diligence and dogged determination of the noble and learned Baroness and the noble Lord, Lord McColl of Dulwich, to get justice for trafficked children. I also say to the Minister that I still do not understand why the Government have been so reluctant to act before now, why they could not have agreed to amendments in earlier Bills and why there was no provision for guardians in the draft modern slavery Bill. I know that pilots have now been announced, but if that has been the Government's intention for some time, why was there not an enabling clause in the draft Bill? I am pleased that the Government clearly now intend to introduce an enabling clause by amendment, but they could have done so much more.
In the absence of the amendment passed by this House, an enabling clause in the modern slavery Bill is welcome, but what would trigger that enabling power? Despite what the noble Lord just said, I am still slightly concerned about the statutory basis for the scheme. I want to be absolutely clear that, when a guardian feels the need to give instructions to a lawyer where a child is incapable of doing so, that lawyer will have the statutory basis to be empowered to represent the views of that child. Can the Minister give that assurance?
I also have a question about the timings. Could the Minister confirm that the trial will start on 1 July? Could he further tell the House when the pilots are due to end? As he would understand, it would be unacceptable if, when it came to the report that is in the amendment of the noble and learned Baroness, the Government were able to say that they had not had time to assess the outcomes of the pilots. I want to ensure that the timescale works.
The Minister in the other place said that the trial would cover 23 local authorities. Will all trafficked children be placed within those authorities, so that all trafficked children are covered by the trial?
I will mention one thing that may seem a bit pernickety. I was slightly concerned by some of the reasons given by the Minister in the other place for rejecting the noble and learned Baroness’s earlier amendment. He said one reason was that it dealt only with children under immigration control and that he wished in the modern slavery Bill to craft provisions covering all trafficked children. Of course, there was nothing to prevent the Government accepting the amendment and then repealing the provision if necessary when replacing it with a clause in the modern slavery Bill.
As I said, I welcome the fact that the Government are now introducing an enabling clause, but I am frustrated that it has taken such a long time. I am also rather frustrated that, in the end, the Government took the advice from the Speaker that financial privilege should be attached to this specific amendment. Sometimes, of course there are questions of money but in this case the money is negligible. Sometimes there are questions of politics but this issue has had cross-party support throughout. I am just frustrated that it has taken so long to get to where we are. Of course, I trust what the Minister said. I just seek clarification on the various questions I asked.
Baroness Hamwee (LD)
My Lords, I note that at the last stage the noble Baroness and I both used the term “dogged” to describe the work done by those who advocated—if that is not the wrong term in this context—the guardianship provisions. I sense that the House would like to move on as there is so much agreement, so I will go straight to the one question I have left of those I had on the amendment.
There is a difference, in the normal understanding of the terms, between “advocacy” and “guardianship”. They are not the same thing. Of course, the detail of the role will be described when we come to the legislation so we will then understand just what it will cover. No doubt we will discuss that. The one question I have left for my noble friend that has not already been asked is: how will the Government assess and evaluate the trials or pilots—whatever we call them—including assessing the need for the provisions that are not included in the trial? The noble Baroness mentioned the one about being instructed and being able to carry out instructions, which I was also concerned about that because of my own professional background. If the trials do not cover a part of the role, how are we going to know whether that role was necessary? I hope my noble friend can explain what the approach to the assessment and evaluation will be.
Baroness Kennedy of The Shaws
There can be all manner of speculation about whether, if someone was born in, for example, Somalia but left at the age of three, Somalia might afford citizenship to them. Would Somalia give them citizenship in such circumstances if Britain had removed citizenship on the basis that they were a threat to national security here? Would Pakistan? Would Syria? Would Egypt? The test of reasonable grounds for believing that the person would be able to acquire another nationality does not answer that question. What if they cannot do so? That is the question that my noble friend Lady Smith raised, and at the moment it has not been answered satisfactorily. I wait with interest to hear what the Minister says.
There is a second matter: what constitutes service? It ties in with the point raised by the noble and learned Lord, Lord Hope. What constitutes service when somebody is abroad? Is it good enough to serve notice on relatives living in Britain? Why should it be assumed that they would be able to inform adequately a person who is living somewhere else that they have had their citizenship removed? I would be very interested to hear the Minister’s response to what constitutes service. If someone is in a place such as Syria or Somalia, what is the likelihood of being able to serve notice—in the way that we understand service normally in law—on somebody in a war-torn area or a place where there is chaos and little in the way of government as we understand it?
What do we do about the issue of appeal, which was just mentioned by the noble and learned Lord, Lord Hope? At the moment, the normal period for appeal in the rules of citizenship is 28 days, and nothing suggests that that would change. Is someone in Somalia expected to be able to appeal within 28 days, not having been in receipt of service but having been informed days before, over a very poor telephone line, that they have the right of appeal but time is about to run out? What is the answer to the question of the appeal period?
If a person is unable to acquire another citizenship, will the withdrawal of citizenship then be negated? Will it fall away, and will the person then reacquire their British citizenship? Are we giving that as a guarantee? Will we see reinstatement if no other state is prepared to follow through?
I ask those who are international lawyers, or international lawyers advising the Government: when someone has a right to citizenship, is there not always a level of discretion in a state to say, “Yes, you are entitled because you were born here, but then you went away and you became a British citizen, but we are not going to allow you to apply and become a citizen of this country now because we believe that there is intelligence of your conducting yourself in a way that might be inimical to our national interests”? The question is much more complicated than is being suggested by the way in which the Government are seeking to appease us at this moment. That is why those of us who were concerned about this issue wanted there to be a much more considered review before the law was changed. I fall in line with others: I should like very clear answers to some of the questions raised by the noble Lords, Lord Pannick and Lord Macdonald, and by the noble and learned Lord, Lord Hope, and to the questions that I have raised, before I would be satisfied that the movement by the Government has been far enough.
This is an issue of high moral import. This is an issue that affects not only us here, but which will be looked at around the world. There will be implications for people in other parts of the world, too. I ask the Government to take great care over the answers that are given because, as we have heard from others, courts will deal with applications, appeals and reviews based on some of the answers given today.
Baroness Hamwee
My Lords, noble Lords will be glad to know that I will be as energetic as I can in editing my remarks to exclude questions which have already been asked. However, I retain some points and concerns on the amendments, including on the principle.
Questions have been asked about what is meant by being “able”, and also about the practicalities of the matter. The Minister in the Commons said: “I am sure that”, the Secretary of State,
“would … have to consider practical issues and the other surrounding circumstances … She will, therefore, wish to consider those other practical or logistical arrangements as part of her determination”.—[Official Report, Commons, 7/5/14; col. 193].
Can my noble friend give the House assurances as to how all that will actually be reflected in statute or, if not in statute, then in guidelines? I mention here the guidelines published by the UNHCR on statelessness, which specifically refer to the application of nationality laws in practice being,
“a mixed question of fact and law”.
On the right of appeal, the noble Lord, Lord Pannick, has said that he trusts that there will be an assurance that the issues will be dealt with as open evidence. I add to that, while having the same hope, that if there are aspects which cannot be dealt with openly, will the provisions—I do not much like them, but they are what we have got—on gisting and special advocates apply? I have seen some doubt as to whether that would be the case.
On the amendment for review, I am glad that the Government have tabled this, as I did both in Committee and on Report. However, I stressed then the importance of independence. That term is missing from the Government’s amendment. Perhaps I can put it this way to my noble friend: can he confirm unequivocally that the review will not be in the hands of somebody who is within the Home Office?
Like others, I would welcome this being a matter for the independent reviewer of terrorism legislation. Concern has been expressed about resources, but whoever does the job is going to need the resources to do the job. I, too, have a question about why, after the first year, it should be triennial. If we are dealing with small numbers, then the job should be correspondingly small. I also ask the Minister to give us an assurance that the Government will support the reviewer undertaking more frequent reviews if he considers that they should be undertaken.
In debate, we have barely touched on the impact on communities of whom an individual in question is a member. I would support the appointment of the independent reviewer of terrorism legislation, because that postholder deals with people who are in rather connected situations where other measures might be applicable—and, indeed, might apply if deprivation is not to be used. It is clear that there is a danger that the use of the state’s powers, which focus on neutralising—if that is the word—the individual without considering the negative effect on the community, is an issue, as well as the specifics for the individual and their family. I am sure that the independent reviewer would focus on that as well.
Lord Taylor of Holbeach
My Lords, this has been an extremely good debate: a serious one, on a very serious issue. We have been fortunate to be able to hear from a large and well qualified body of the Members of this House. I am grateful to all noble Lords who have spoken, and I will do my best to provide those assurances that have been sought by noble Lords. The noble Lord, Lord Pannick, in welcoming the Government’s move in tabling their amendments in the Commons, wanted assurances. I am most grateful to him for letting me have sight of the things he was concerned about so that I was able to address them. I can say the same of my noble friend Lady Hamwee, who did not raise all the issues she had intended to because they had been raised by other noble Lords. However, I think that that most noble Lords have a similar need for reassurance, and I am well aware of the responsibility to provide that assurance to Members of the House.
Perhaps most important is the whole question of the meaning of “reasonable grounds to believe” and whether those reasonable grounds of belief are appropriate for determining the ability of a person to acquire another nationality. The Home Secretary’s decision must be “reasonable” based on the evidence available to her on the nationality laws of those countries and the person’s circumstances. That will include having regard to any practical arrangements, but those will vary from case to case, and it is not possible or appropriate to speculate about what weight those issues would carry in a particular case. “Satisfied” has been interpreted to mean that SIAC decides for itself whether a person is a dual national. In some circumstances a person, after being deprived of British citizenship, may take steps which guarantee that another country will not recognise him or her as a national. The appeal should therefore review the decision at the time it was made, which is why the phrase “reasonable grounds to believe” instead of “satisfied” is used.
Both the noble Lord, Lord Pannick, and the noble Baroness, Lady Kennedy of The Shaws, asked what the position would be if the foreign state had some discretion in whether to approve an individual’s request for citizenship. I think that the noble Baroness went as far as to say that she thought that there were likely to be grounds for discretion in almost any case. The clause refers to whether under the laws of a country or territory a person is able to acquire the nationality of that country. The key issue will be whether the Secretary of State reasonably believes that they are able to acquire the nationality. It does not say that the person must have a right—an automatic entitlement—to that other nationality. Where there is a discretionary judgment there may be reasonable grounds to believe that the discretion will be exercised. However, reasonableness would require something more than saying that the person should apply for the exercise of a general discretion to grant citizenship to any country that has such discretion. I hope I make myself clear on that. The Home Secretary must have reasonable grounds to believe that, at the end of any application process—if one is required—the person will become a national of another country.