Serious Crime Bill [HL]

Debate between Baroness Hamwee and Lord Howarth of Newport

Tuesday 8th July 2014 Lords Chamber

[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.

--- Later in debate ---

[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.

Anti-social Behaviour, Crime and Policing Bill

Debate between Baroness Hamwee and Lord Howarth of Newport

Wednesday 8th January 2014 Lords Chamber

[Baroness Hamwee]

Of course, these things are all subjective to some extent and perhaps that was an inappropriate word for what I was trying to describe. However, with what is reasonably frightening one is attempting to put objectivity into it; what may be unreasonably frightening would fall into a different category.

Perhaps I may now refer to the preventive nature of the provisions and say that, in considering whether the clause impinges on the fundamental freedoms of individuals—and we are talking here about individuals and not peaceful assembly—the convention rights, including freedom of expression, are protected in any event, as I understand them. The Minister will no doubt explain that the Government have responded to the JCHR’s concerns.

I have been critical about the reliance in the Bill on guidance. I agree with the noble and learned Lord, Lord Mackay of Clashfern, about it not being appropriate to give guidance to the courts—I made that point at the previous stage—but they would not be guided in the way that the potential applicants listed in the Bill would be, and the guidance will now be statutory.

The noble Baroness the Lord Speaker has confirmed that the second amendment—the reasonabless amendment —would fall if this amendment were agreed to. I finish by saying that I will still feel free to annoy people by delivering leaflets and by expressing minority opinions. I fear that, as a child of the 1960s, the musical exhortation has not persuaded me.

[Lord Howarth of Newport (Lab)]

My Lords, the noble Lord, Lord Faulks, was right in this, at least in drawing attention to the scourge of anti-social behaviour. When I represented the constituency of Newport East I was all the time aware that there were households and, indeed, communities whose lives were very seriously blighted by anti-social behaviour. There is enormous political pressure on MPs representing constituents to find ways to crack down more aggressively and more effectively on such behaviour patterns. That pressure is, of course, amplified by the tabloids.

That is precisely why we should be moderate in this matter, why we need to be restrained and why we must try to get the right balance. Therefore, the provision in law that a threshold of “harassment, alarm or distress” must be exceeded seems to me to strike the right balance. I think that it is dangerous and improper to lower the threshold to “nuisance or annoyance”. It is surely unthinkable that we should risk introducing legislation that could impair the rights of people to go on demonstrations, as my noble friend Lady Mallalieu offered as an instance, or of kids playing football in the street, as the noble Baroness, Lady Hamwee, worried about. There are all manner of other innocent behaviours that are, indeed, annoying, but that in a free society we should not dream of legislating to prevent.

The noble Lord, Lord Faulks, did not annoy me—he never could annoy me—but he startled me with the arguments he scraped together in his gallant speech in support of the Government’s position. He asked: is it a realistic fear that people would be subject to IPNAs for trivial and inadequate reasons? He offered the thought that the requirement that applications would have to be made through an official public agency should be seen as a filter and a safeguard. The vast majority of public officials handle their responsibilities fairly, properly, scrupulously and reasonably. I hate to say this, but it is also, surely, an observation that all of us have made that if you put a man in uniform, or if you vest official authority in a person, some will find themselves tempted, and succumb to the temptation, to use power overweeningly. We have to be very careful indeed.

The noble Lord says, further, that guidance will be offered to these agencies so, again, we do not really have cause to worry. I am sure that the guidance will be a force in the right direction, but guidance is only guidance; it is flimsy and an insufficient protection. The much better protection would be not to write this risk into law. He offers a much more reassuring protection—that such injunctions could be made only at the discretion of a judge and that we can rely upon the judges to exercise common sense, decency and appropriate restraint and to be animated by a mature and wise sense of justice. In that case, why legislate? We do not need to do this. We can rely on the judges not to order injunctions against people who are merely guilty of causing trivial annoyance. It does not seem sensible, in the present circumstances in which the resources of the courts have been very attenuated, to add this burden to them.

I agree with the noble Lord, Lord Cormack. What are we here for if not to protect civil liberties? Justice and convenience are very often in tension. I suggest that what may be for the convenience of the Government politically, for the convenience of local citizens, whose annoyance threshold is perhaps rather low, or for the convenience of agencies may be very ill assorted with justice. I think that the Government’s position is unwise and I very much hope that the House will support the amendment in the name of the noble Lord, Lord Dear, and his colleagues.

Anti-social Behaviour, Crime and Policing Bill

Debate between Baroness Hamwee and Lord Howarth of Newport

Wednesday 4th December 2013 Lords Chamber

[Baroness Hamwee]

My Lords, I well understand the concern expressed by the noble Lord, Lord Rosser. For instance, I recognise what I can think of only as collusion between sellers and buyers of substances labelled bath salts, plant food, and so on. The noble Baroness says that this is her only qualification—come on, it is some qualification. We are very lucky to have her explain her point so clearly and, to my mind, so persuasively. As she says, trading standards authorities are as concerned as everybody else and struggling to find a way to deal with this. Has the noble Lord had comments on the proposal from the Trading Standards Institute?

Like the noble Baroness, the points that occurred to me, which I will not repeat but simply support, are: is this risk-based, is it evidence-based, will it bring the law into disrepute, does it recognise the psychology of the consumer? Chemists in China will stay ahead of the game and will use the internet. Of course we have to be smart, but we have to be smart differently, not try to beat them in the way that they are working.

[Lord Howarth of Newport (Lab)]

My Lords, the problems of new psychoactive substances are real and perilous. My noble friend Lord Rosser mentioned the number of recorded deaths. It is simple for an organic chemist to synthesise a new psychoactive substance to mimic the effect of a substance that has been banned. We understand that, across Europe, about 250 new psychoactive substances have been introduced in recent years. The Angelus Foundation, which originally proposed the new clause, has counted at least 250 head shops offering to provide such substances on the shopping streets of this country. There are other outlets, as has been mentioned, all of which succeed at the moment in evading existing regulation.

It follows that the buyers of those substances have no information about the composition, toxicity or purity of what they are buying. It is not only from the head shops that those substances can be obtained. Increasingly, they are being bought over the internet. Social networking spreads the news of the arrival of a new substance, and it is not at all uncommon for party invitations, distributed through social networking, to contain links to the suppliers of such substances.

The situation is very dangerous. The substances are cheap to produce and pretty cheap to buy. Sadly, young people are willing to take extraordinary risks with their own health and safety. A survey by Mixmag of club drug users found that no fewer than 25% of respondents said that they were willing to purchase and consume any white powder, unidentified.

The Angelus Foundation is right to have highlighted this issue and to have dedicated itself to improving the education available to people about new psychoactive substances. I pay tribute to Maryon Stewart, who created the Angelus Foundation following the tragic death of her daughter, who had consumed a new psychoactive substance. Maryon Stewart was impressive when she gave evidence to the inquiry which the noble Baroness, Lady Meacher, chaired on this issue.

However, with genuine great respect for the Angelus Foundation, and of course for my noble friends Lady Smith and Lord Rosser, I believe that this proposed new clause is not the right way to approach the problem. Attacking head shops in the way that it envisages might indeed succeed in driving them out of business, but my worry is that it would drive the people who are purchasing these substances into the arms of nastier criminals—into the danger and squalor of engaging with gang-related street dealers in car parks and alleyways. If they are not already using the internet, and I suspect that most of them will be, it will of course drive them into its seductions and dangers, perhaps particularly those of the dark web. The European Monitoring Centre for Drugs and Drug Addiction reported in its 2013 annual statement that it has identified 693 different internet outlets offering new psychoactive substances for sales. Actually, what I think will happen is that the internet will drive the head shops out of business, just as it has driven record shops and book shops out of business. This is not a measure that would enable us to police the net.

The Angelus Foundation has been candid that its purpose in proposing this new clause is to ban the sale of new psychoactive substances but all the evidence from 50 years of prohibition is that banning substances does not stop trafficking in drugs or people using drugs. In fact, it drives innovation; as one avenue is closed, another is opened. Prohibition has been an engine of crime. It has been counterproductive and has produced appalling consequences.

There are also civil liberties implications in this proposed new clause. Since an earlier version was debated in another place, it has been revised to require a lower standard of proof. The proposition is now that if a court is satisfied merely on the balance of probabilities, and not beyond reasonable doubt, it may make an order against a head shop listing products which appear to trading standards officers to be psychoactive and synthetic, and to have been bought for the purpose of intoxication. If the proprietor is unable to demonstrate that that is not the case, he will be liable to a prison sentence of six months or a level 5 fine. It is inconceivable that in this country we should legislate to imprison people because it appears to an official of the state that such and such is the case and the accused is unable to disprove the allegation. We have not seen legislation like this since the days of the Warsaw Pact in eastern Europe. It would be wrong for us to lower our standard of justice.

I am also bemused to note that the expectation, according to the Angelus Foundation briefing, is that consultation should follow once the legislation is on the statute book. That would be Alice in Wonderland legislation. I had not hitherto seen my noble friend Lady Smith of Basildon as the Red Queen, or my noble friend Lord Rosser as the Red King.

The Intoxicating Substances (Supply) Act 1985 is, I suggest, a bad model for legislation to deal with the problem that we are addressing. It was designed to ban the sale of glue or lighter fluid for purposes of intoxication, but we know what glue and lighter fluid are. The very difficulty is that we do not know what these new psychoactive substances are, so how would the court establish the balance of probabilities? Would it be on the basis of guesswork or on the say-so of a trading standards officer? Justice, like policy, ought to be based on evidence. One of the great difficulties that we are facing is that the infrastructure for forensic testing in this country is entirely inadequate. We have not invested as we needed to do in it. That is a point that we made in the all-party group’s report. The result is that the Misuse of Drugs Act 1971, temporary class drug orders and the whole apparatus of the Advisory Committee on the Misuse of Drugs are underresourced and unable to deal with a problem of the scale, complexity and pace of change that we have to deal with in respect of new psychoactive substances.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Baroness Hamwee and Lord Howarth of Newport

Tuesday 20th March 2012 Lords Chamber

[Lord Howarth of Newport]

My Lords, in some circumstances I might have hesitated to support the amendments that have been tabled by the noble Baroness, Lady Miller of Chilthorne Domer. However, in the circumstances in which we find ourselves—circumstances in which the Government have made drastic cuts to new provision of social housing and have introduced reforms to housing benefit which will cause significant numbers of people to lose their homes—I can only support the noble Baroness’s amendments. I do not think it is right to criminalise vulnerable homeless people, as she describes them, who seek to find a roof over their heads in empty properties in these circumstances.

[Baroness Hamwee]

My Lords, I would like to support my noble friend as well. I share her concerns about criminalisation. I agree so much with everything that has been said so far, so let me see if I can extract the questions from my notes. First, with regard to this new provision—as it appears it will be—as against Sections 6 and 7 of the Criminal Law Act 1977, how are decisions to be taken as to whether to prosecute under one of those sections or under what is currently Clause 136? Is government guidance going to be given or will it be provided by the CPS?

One of my noble friend’s amendments refers to the police and enforcement. Clearly, she is right to draw attention to that because it is a matter of enforcement. Her first amendment, relating to 12 months, strikes me as being quite modest given that the provisions in force, the Empty Dwellings Management Orders—they were brought in when there were nearly 700,000 empty homes but the figure may well be higher—provide a six-month exemption. A period of 12 months therefore seems quite modest.

I am also concerned about the term “residential”. In its bare form, is that term used elsewhere in legislation? The suggestion in the amendments is to link this to classes of use. The Bill provides simply for “residential” to be a building,

“designed or adapted … for use as a place to live”.

I am not sure what “live” means or what permanence that implies. I know of a number of buildings that are adapted as places to reside. I would include in those City offices where in the past I have had all-night meetings and I know that those had every facility one could possibly need. I daresay government departments have those as well.

Finally, I should like to pick up the references made to the vulnerability of people who find themselves in a position where they take the decision to squat. It is hardly a decision because it is the only course open to them aside from rough sleeping. It is not a desirable thing to do and I do not believe that most people who do this would not prefer conventional accommodation. One of the organisations which has been in touch with some noble Lords is called Squash, which is almost an acronym for Squatters’ Action for Secure Homes. That is such a telling name. What is being proposed will drive people who want secure homes into much more dangerous situations. I am delighted that my noble friend has put so much effort into addressing the issues raised by these clauses.

Localism Bill

Debate between Baroness Hamwee and Lord Howarth of Newport

Wednesday 12th October 2011 Lords Chamber

[Lord Howarth of Newport]

My Lords, not having participated in proceedings on this Bill hitherto, I hope that the House will none the less tolerate me in making a very few remarks in response to what I have listened to this afternoon. It is desirable that the definition of sustainable development should be filled out, not least because of the suspicions that many people currently entertain in this country that sustainable development is no more than a euphemism for development at all costs.

I know that that is not the Government's intention but that is unfortunately the impression that has gained some currency. It would be desirable to fill out the definition in order to reassure people and in order to provide better clarification and guidance for planners and would-be developers as well as for the communities that would be affected by the development.

We should be grateful to the noble Lord, Lord Greaves, for having tabulated so many of the components of sustainable development in an appropriate sense. I agree also with the right reverend Prelate that, however we formulate this, it ought to be clear that the spiritual dimension of our human existence is something that is to be supported and sustained in this process of sustainable development. I am also attracted to what my noble friend Lady Andrews had to say about incorporating references in appropriate wording on cultural and heritage matters. One might also add that it would be desirable for a definition of sustainable development to incorporate language relative to design, and that it should stress the importance of good design processes in achieving sustainable development.

I think that what I am saying illustrates that we are not yet in a position to agree on a definition of sustainable development, other than in the succinct—perhaps too succinct—Brundtland definition, which the Government use in the draft national planning policy framework. I am also wary about incorporating rhetoric and aspiration in legislation. It seems to me that our legislative tradition in this country is to be as specific as we can about legislation, to enable the courts to interpret it in a practical and expeditious fashion.

I agree also with the warning uttered by the noble Lord, Lord Deben, that if an elaborate definition is placed upon the Bill, there is a danger that it will be almost an invitation, if not a challenge, to litigants to try to exploit it, whether their intention is to prevent or promote development—although the former is more likely. If the practical upshot is that development would be quite seriously inhibited by placing a more complex definition of sustainable development on the Bill, then perhaps we should be very careful indeed about doing that.

It seems to me, therefore, that if we are to fill out the definition, the right place to do this would be in the national planning policy framework itself, which is the gloss upon the Bill. This is the document that explains and interprets to the lay person, and all sorts of practitioners, the policy of the Government and what they seek to achieve through this legislation. Again there are difficulties, partly because there is not yet a sufficient consensus about how to define sustainable development. At least if you have a national planning policy framework, it is possible to update it from time to time without having to resort to all the processes of primary legislation.

Even if we put a complex definition into the national planning policy framework, that may still make the process more susceptible—too susceptible—to litigation. It depends upon the legal standing of the national planning policy framework, but I think that it does have some sort of legal status. So, I just counsel caution about this. I really do counsel caution about trying to place a satisfactory definition on the face of the Bill, and I think that we should even be rather cautious about trying to elaborate the advice given—the guidance—in the national planning policy framework.

[Baroness Hamwee]

My Lords, perhaps it is a little impertinent of me to deny a compliment that has just been given by the noble Lord, Lord Howarth, to my noble friend Lord Greaves, but he congratulated my noble friend on tabulating the items, when I think my noble friend would say that he copied it out. The noble Baroness, Lady Andrews, referred to familiarity and we will all have recognised the words.

I would like to use this opportunity to ask the Minister a question. I have heard her say on a different occasion that two of the five principles are not as appropriate to planning as they are to other parts of government. These two principles are the use of sound science and the promotion of good governance. For my part, I must say that they both seem entirely appropriate. On the subject of science, let me just mention climate change and flooding. Governance, after all, is used both in the creation of local plans and in dealing with planning applications, as well as more widely. So they both seem to me to be appropriate. If that is to be a part of the Minister’s response, I hope that my noble friend can spell out why that is so. I am open-minded to hearing it, but I will be interested to hear the detail.

Identity Documents Bill

Debate between Baroness Hamwee and Lord Howarth of Newport

Tuesday 21st December 2010 Lords Chamber

[Baroness Hamwee]

On all previous occasions when we discussed this matter, I was honest with the House that I had some difficulty with it, but is what was the substantive issue then in fact the issue for today? I have been waiting to hear some comment on the Commons reason for disagreeing with this House’s amendment. The noble Lord, Lord Howarth of Newport, addressed the issue of financial privilege and suggested that we should not accept it. However—and this is an entirely personal view—I think that this may well be an issue that goes to heart of the relationship between the two Houses. I have grave doubts as to whether we should tackle that convention on the back of this Bill. This is an important, stand-alone issue, but it is not one that we should seek to overturn in this manner.

[Lord Howarth of Newport]

My Lords, I agree with the noble Baroness, Lady Hamwee. Before she sits down—

Intelligence and Security Services: Treatment of Detainees

Debate between Baroness Hamwee and Lord Howarth of Newport

Tuesday 6th July 2010 Lords Chamber

[Lord Howarth of Newport]

My Lords—

[Baroness Hamwee]

My Lords—