Serious Crime Bill [HL]

Lord Howarth of Newport Excerpts

Tuesday 8th July 2014 Lords Chamber

[Lord Phillips of Sudbury (LD)]

My Lords, I strongly support what the noble Baroness, Lady Smith of Basildon, said. The issue—if you can call it an issue as it is a series of issues—in relation to cybercrime could scarcely be of greater importance to our society. It is not just an economic crime of the greatest potential but a crime in all dimensions.

The only reservation I have about the amendment is whether it goes far enough. Besides having to deal with the strategy in relation to cybercrime, I would hope for something in the report about the extent of the implementation and enforcement of the laws we are passing and the laws we have already passed. It has become a commonplace in this House to remark upon the fact that we pass laws as if there is no tomorrow but fail again and again to implement the laws we pass. I therefore hope that the report will deal with that crucial aspect of the so-called strategy.

I am not clear as to whether we are in this group also now discussing whether Clause 37 shall stand part of the Bill. We are not? Right.

[Lord Howarth of Newport (Lab)]

My Lords, when I first studied the Bill and saw that there were clauses relating to cybercrime as well as substantial parts focused on the problems of drugs, I thought that the sections on cybercrime would have something to offer on the development of the Government’s strategy to deal with our immense problems with drugs. However, I cannot see that there is any connection between these different parts of the Bill. That is a disappointment.

Will the Minister share with the House some of the thinking of the Home Office as to how it proposes to address the rapidly developing and immense problem of drugs-related cybercrime? As I noted at Second Reading, the internet has transformed the marketing and distribution of drugs, whether they are proscribed or whether they are new psychoactive substances that are not proscribed. It is now far easier for those who produce these substances and those who sell to be linked up with those who are interested in consuming them. Social networking has intensified this ease of communication. For example, I understand that it is not at all uncommon when party invitations are distributed by means of social networking that the message will contain a link to the point at which particular fashionable, newly arrived substances can be obtained.

This problem presents huge challenges to policing in terms of protecting the safety of all people, particularly young people. The Government and law enforcement agencies must be thinking very hard indeed about this. It would be helpful if the Minister would say, were he to accept my noble friend Lady Smith’s amendment, what he would expect to see in these annual reports on the subject of drugs-related cybercrime. We have social networking, which uses relatively familiar and accessible networks of communication, but there is of course the dark web. The Home Office must again be pondering and working very hard indeed to find ways in which it can even know what is going on on the dark web, let alone to police it. These are hugely important issues, and perhaps the noble Lord would share his thoughts on them with us.

[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.

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[Lord Taylor of Holbeach]

My Lords, the noble Baroness, Lady Smith of Basildon, has created a new parliamentary device. I had long heard of the paving amendment, but today she has moved a door-stop amendment. It has enabled us to discuss an important aspect of the Bill, and I am pleased that we have the chance at least to consider the clauses that are designed to deal with cybercrime.

The Government’s approach and the scale of the investment that we have made across law enforcement agencies to develop and strengthen the operational response are designed to combat that emerging and complex threat. In 2010, the national security strategy named hostile attacks on UK cyberspace by other states and large-scale cybercrime as a tier-one threat to national security. To put these provisions on computer misuse into context, they are principally aimed at that level. That means that for the Government cyber is regarded as on a par with international terrorism as regards the risks to our national security. The Government have responded to that threat by committing £860 million over five years to the national cybersecurity programme. So far, we have invested over £70 million of that funding to strengthen law enforcement’s ability to tackle cybercrime.

We know that a co-ordinated approach is needed to tackle serious and organised crime, including cybercrime. We set out how we plan to achieve that in the Serious and Organised Crime Strategy, and I think that the noble Baroness will find some of the thoughts of the Home Office in that document, which we launched in October last year. At the same time we launched the National Crime Agency, which leads the UK response to serious and organised crime. The National Cyber Crime Unit in the NCA was established to provide the national crime-fighting response to the most technologically sophisticated cybercrime.

The National Cyber Crime Unit therefore provides the focus for our national response to combating cybercriminals. It is using its increased operational resources to arrest those responsible and to prevent and otherwise disrupt their activities. The National Cyber Crime Unit is also investing in state-of-the-art equipment and specialist expertise, keeping pace with the criminals who threaten the public. It also uses the NCA’s enhanced intelligence picture to proactively pursue criminals, targeting them where they are most vulnerable and signposting the public towards advice on how to protect themselves. Approximately half the NCA’s officers are being trained in digital investigation skills. That shows that we recognise the significance of cybercrime in fighting serious crime in this country.

The National Cyber Crime Unit has already had an impact in pursuing those criminals and disrupting their activity. Examples include the recent operation with its international partners to disrupt the communications used by criminals to connect with computers that are infected with malicious software, or “malware”, such as GameOver Zeus and CryptoLocker.

However, the NCA and the National Cyber Crime Unit cannot tackle that threat alone. The policing response to national threats is set out in The Strategic Policing Requirement, which chief constables and police and crime commissioners must have regard to, and which recognises both cybercrime—as a form of organised crime—and a large-scale cyber incident as national threats that require a policing response. While police forces can draw on the support of the National Cyber Crime Unit, it is also vital to build force capability to tackle the cyberthreat locally. We have therefore also provided funding to support the creation of cybercrime units within eight of the regional organised crime units.

The cyberunits will support the National Cyber Crime Unit and also help local forces prosecute and disrupt cybercriminals. They are also building links with institutions such as this to understand better the threat we face and the best tools to use in response. This year we have offered £25 million to support regional organised crime units. With funding from the national cyber security programme, the College of Policing is investing in new courses to build cybercapabilities in local forces. The training will increase knowledge and understanding of cybercrime and how to investigate it. It includes four e-learning packages and classroom courses to train 5,000 officers by 2015.

Lastly, we are also funding Action Fraud and the “Be Cyber Streetwise” campaign so that the public have a clear single point of reporting if they are victims of cybercrime, in particular financially motivated cybercrime, and know how to protect themselves and so reduce the risk of becoming a victim of cybercrime—the identity theft that the noble Baroness mentioned. Turning to Action Fraud first, we have rationalised the reporting arrangement so that Action Fraud is now the national reporting service for fraud and financially motivated cybercrime. The public and businesses can use it to report online or by phone. All reports go through Action Fraud, which then passes the reports to the National Fraud Intelligence Bureau. Both are now run by the City of London Police, the country’s national lead force for fraud. In January the Government launched a “Be Cyber Streetwise” campaign, delivered in partnership with the private sector, to encourage individuals and small businesses to adopt safer online behaviours to help them better protect themselves.

Although we have included Clause 37 in the Bill, I shall say a little about the new offence therein to capture cyberattacks which cause, or create a significant risk of, serious damage. This was referred to by my noble friend Lady Hamwee. Improvements in technology have brought many benefits and the use of IT systems has increased exponentially since the Computer Misuse Act was passed in 1990. It is surprising that we are building on that Act of 1990—it was a far-seeing piece of legislation. However, as we rely more and more on computer systems, and as they become increasingly interlinked to deliver maximum benefits, the potential for a cyberattack to cause serious damage also increases.

It is now possible that a major cyberattack on essential systems—for example, those controlling power supply, communications or food distribution—could result in loss of life, serious illness or injury, serious damage to the economy, the environment or national security or severe social disruption. However, the existing offence of impairing a computer, currently the most serious of the Computer Misuse Act offences, carries a maximum sentence of only 10 years’ imprisonment. This does not adequately reflect the level of serious economic or personal harm that a serious cyberattack could now cause.

The new offence will apply where an unauthorised act in relation to a computer—that is “hacking”, in common parlance—results, directly or indirectly, in serious damage to human welfare, the environment, the economy or national security, or creates a significant risk of such damage. The offence will carry a maximum life sentence where the attack results in loss of life, serious illness or injury or serious attacks to national security. Where the attack results in serious economic or environmental damage or social disruption, the maximum sentence will be 14 years’ imprisonment. This offence will ensure that, in the event of serious cyberattack, a suitably serious offence will be available to the prosecution and a suitable sentence available to judges.

A number of other issues have been raised, and it may be helpful to noble Lords if I write a summary covering different aspects. Identity theft was raised by the noble Baroness, Lady Smith, and the drugs issue was raised by the noble Lord, Lord Howarth. We recognise concerns about the whole business of legal highs and their availability on the internet. The Minister for Crime Prevention, Norman Baker, is currently reviewing law in this area, and the House will have an opportunity to consider the review’s findings later this year. It would be helpful to use the opportunity of this debate about the particular aspect of cyber misuse that is of serious consequence for me to write to noble Lords, including my noble friends Lord Phillips of Sudbury and Lady Hamwee. I would like to be able to reassure them on that point. Indeed, I think that my noble friend Lord Swinfen also raised a point that I would like to address in that way.

I hope that, given the reply that I have been able to make, and including those points in a more general discussion about this area, the noble Baroness will be in a position to withdraw her amendment. We have clauses in the Bill that address cybercrime and we have taken a significant step in recognising the importance of this to our national well-being.

[Lord Howarth of Newport]

I thank the Minister for what he said about drugs-related cybercrime. Will he also seek to offer the House some reassurance on a very major issue that he touched on? He emphasised the Government’s very proper concern to protect our critical national infrastructure against cybercrime. I believe that it is the case that a good deal of cybercrime emanates from China. The Government have just completed a negotiation with the Chinese whereby it is agreed that they will build our nuclear power stations. What reassurance can he give to us that we are going to be protected in the event of cybercrime coming from a Chinese source, conceivably in unfortunate diplomatic circumstances authorised by the Government in China? I appreciate that this goes beyond a routinely or merely criminal issue, but it seems exceedingly important to me—and something that the Government must have been thinking about. As he has been advising us on the Government’s measures and strategies to deal with cybercrime, perhaps he could also say something about that.

[Lord Taylor of Holbeach]

I think that I said in my general speech in response to the noble Baroness’s amendment in addressing this area that we recognise that serious damage to national interests and human well-being can be caused by individuals and also by organisations and states. I do not want to give an answer to the noble Lord’s particular suggestions. All I can say is that, obviously, we are anxious to work with China. It is an important nation in the world’s affairs and its assistance is important economically to the prosperity of the world.

If I can add any more to what I have just briefly said, I will write to the noble Lord, but in any case I will be writing to all those who participated in the particular debate on this issue, because I think that could be useful.

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[Lord Howarth of Newport]

Before the Minister sits down, I should say that I did not speak earlier in the debate because my noble friend Lady Smith said everything I wanted to. Could the Minister develop his response a little to one very important point that she made? It was on the question of due diligence. There is a serious anxiety among professional people that it will be very difficult for them to demonstrate that they performed the due diligence that would clear them from any charge that they knew or had reasonable cause to suspect that their clients were engaged in organised crime. It would be helpful if the Minister gave us some illustration of the kind of due diligence that would be satisfactory and pass that test. Obviously, if people do not have cause to suspect, then proceed to provide the professional service to their client and so participate, how can they be confident that they will not be caught under Clause 41 in this regard?

[Lord Taylor of Holbeach]

I do not want to prolong this. In fact, I still have quite a lot to say on these amendments. I was not about to sit down at all. Indeed, I really ought to carry on or noble Lords will grumble that the Minister is taking too long to reply. However, I think I can address these issues.

The noble Baroness, Lady Smith, asked me if I could elaborate a little on things I already said in correspondence to her, for the benefit of noble Lords, so I will just give some description. A person commits a participation offence if they take part in activities where they know or have reasonable cause to suspect that they are criminal activities of an organised crime group or where it would help an organised crime group. That must be firmly grounded. Although it would be for the jury to decide whether the threshold had been met in the circumstances of a particular case, the prosecution would need to prove that, for example, a landlord’s activity—the noble Baroness asked about this—participated in or facilitated criminality in some way. As a further safeguard, the Crown Prosecution Service must be satisfied that it is in the public interest.

Amendments 31L and 31Q seek to make other modifications to the scope of the offence. I understand my noble friend’s intention with these amendments and hope she will agree with me that these amendments would not materially change the effect of the provision. The main issue lies in the threshold—the mens rea, as lawyers would say—for the offence.

I listened carefully to my noble friend’s arguments and those set out by the noble Baroness, Lady Smith, that further consideration should be given to ensure that the participation offence does not capture the unwitting or naive. I also acknowledge that many situations look different with hindsight. What to a jury considering a case after the event will be a whole series of red warning signs clearly indicating organised criminal activity might have not appeared to be anything of the kind to the defendant at the time the events actually took place.

I understand the problem of definition of mens rea. However, the threshold or mens rea of belief provided for in Amendment 31P may be said to be the state of mind of a person who says to himself, “I cannot say I know for certain that the circumstances exist but there can be no other reasonable conclusion in the light of all that I have heard and seen”. Quite honestly, this is a very high threshold, which would remove much of the utility of the offence, which we are not in a position to accept.

There are some 36,600 members of organised crime groups involved in drug trafficking, human trafficking, organised illegal immigration, firearms offences, fraud, child sexual exploitation and cybercrime, and then there are the professional and non- professional enablers who help organised crime. A threshold of “believe” will set the bar too high and will not change the way these people operate or deter them from helping an organised crime group. However, a balance must be struck and, in the light of this debate, I am persuaded that we should give further consideration to ensuring that the mens rea is such that it does not capture the naive or unwitting.

I also acknowledge the points made in questioning the need for a general defence to the participation offence as well as the desire of the noble Baroness, Lady Smith, to have defences specific to the regulated sector, which is the nub of Amendment 31R. It is important that there is no anxiety among people, including in the regulated sector, that they might be inadvertently captured by the participation offence. It is therefore right to consider, alongside the level of the mens rea, the need for a defence, but bearing in mind that if one is needed it needs to take into account that the participation offence will apply to professionals and non-professionals alike. We need to have this captured within the mens rea and the defence which should be all-embracing for the regulated and non-regulated sectors.

Amendment 31U seeks to remove the defence in Clause 41(8). This defence is required to protect, for example, undercover police officers who are participating in the activities of an organised crime group for the purposes of frustrating those activities or collecting sufficient evidence to bring the perpetrators to justice. The use of undercover officers will still need senior level authorisation and the police and others will have to demonstrate that the use of the officer is necessary and proportionate. There are a number of precedents for such defences in other statutes, including in respect of the offences in the Bribery Act 2010 and the offences in respect of indecent images of children in the Protection of Children Act 1978.

I will make some points on the particular concern, in Amendment 31T, that someone who has received consent in the submission of a suspicious activity report should not be prosecuted for the participation offence. As it stands, the clause would leave the decision to prosecute the participation offence under these circumstances to the discretion of the Crown Prosecution Service. It would be disproportionate to import the suspicious activity reporting regime for the participation offence when it is most unlikely that it would be in the public interest to prosecute someone in these circumstances; such a prosecution might even constitute an abuse of process. There is also the practical reason that the defence under Section 328 of the Proceeds of Crime Act is only in respect of entering into an arrangement which facilitates money-laundering; if there is evidence of actions constituting part of a wider programme of criminality, this should still be investigated and, if appropriate, prosecuted.

The noble Baroness, Lady Smith, also asked to what extent people must satisfy themselves that there is no wrongdoing. This is part of the question of due diligence raised by the noble Lord, Lord Howarth. The offence will address those who have reasonable cause to suspect or know they are assisting organised crime. It does not require people to carry out additional due diligence. It is for this reason that we do not consider that there will be additional costs for business. There is a much closer relationship between people’s actions in a professional, business or commercial occupation carrying out their trade than in some of the more sophisticated checks that have to be undertaken by professionals concerned with other legislation.

[Lord Howarth of Newport]

On the other hand, the regime that the Government are creating through this legislation must not be too easygoing because we face extensive problems of money laundering and participation in other offences. It must be the case that across the country there are professional people who are facilitating organised criminals to launder their money and transfer the proceeds of their crime out of the illegal economy into the legal economy. The Minister is walking a tightrope. I asked him earlier not to lay unreasonable burdens on professional people to demonstrate their innocence. On the other hand, the system has to be tough enough to make an impact on the problem that we suffer from as things are.

[Lord Taylor of Holbeach]

Right at the beginning of my speech, I talked about balance. I said that I thought we have got the balance in Clause 41 just about right. We do not want to upset the balance. We want to reassure people, particularly the professional groups that have been to see us and the Local Government Association, that that balance can be made to work for them. If it means that we come back on Report with some ideas on that, I am sure the House will welcome them because generally the House understands exactly where the Government are on this issue. Even though probing questions have been asked by my noble friend and the noble Lord and the noble Baroness, I understand that underlying them is their support for this participation offence and that they want to make it work.

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[Lord Elton]

The noble Baroness has put forward a very attractive proposal, at which I hope my noble friend will look carefully. I do not doubt that it will need a lot more work on it before it can be in statute. I hope that the length of the interval between Committee and Report will make that possible.

I have a question for the noble Baroness, having only cursorily looked at the amendment. It seems to me that it depends very much on the quality of the sentence or referral that the panel makes. There should be a requirement that any child or young person who is put into its orbit should not be able to fall out of the system so that they simply have to report at intervals. I would like to see the word “monitor” in there somewhere. A responsible adult or organisation should be required in the statute; otherwise, we will get people fading away, as they have done in the past under probation.

[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.

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Debate on whether Clause 47 should stand part of the Bill.

[Lord Howarth of Newport]

My Lords, before the Committee approves Clause 47, I suggest that we think very carefully about its construction and its drafting. Broadening out our consideration from the specific issues of drugs on which we were focused while examining the last group of amendments, we should look at some wider issues of principle, particularly those of civil liberties. I do not want to detain the Committee unduly, but this House prides itself on its willingness to apply line-by-line scrutiny to legislation, and where this clause is concerned some close examination will be appropriate.

The clause would substitute for the existing Section 34 of the Policing and Crime Act 2009 a new Section 34. In proposed new Section 34(1), it is made clear that we are considering the question of powers to grant injunctions against people “aged 14 or over”, and therefore against children. We should bear that in mind as we consider what follows in Clause 47 and the new Section 34. Subsection (2) says that the first condition which the court must satisfy is that it thinks,

“on the balance of probabilities that the respondent has engaged in or has encouraged or assisted … gang-related violence, or … gang-related drug-dealing activity”.

We talked a moment ago about the question of the civil level of proof as against the criminal level—the balance of probabilities as against “beyond reasonable doubt”—and I understand the case that the Minister was making. But under Clause 47, if the court is satisfied on the balance of probabilities that these things have happened and that the person,

“has engaged in or has encouraged … drug-dealing activity”,

then we are told later on, in subsection (7), that “drug- dealing activity” means what it does under the terms,

“of the Misuse of Drugs Act 1971”.

So the young person is being drawn into the purview of the criminal justice system, at the age of 14 or over, but without the safeguards that the criminal law provides: the statutory defences and the higher standard of proof required.

I am not clear what representation a young person in these circumstances will be entitled to, or whether legal aid will be available to support a young person to make their case against an injunction. It also ought to be borne in mind that in criminal proceedings and in one of the amendments that the noble Baroness, Lady Meacher, proposed—I always want to call her my noble friend—the individual must agree to a drug rehabilitation order. I do not see any requirement in Clause 47 that the young person should agree to a course of action which would be prescribed in an injunction. There are issues here that we ought to reflect on.

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[Lord Taylor of Holbeach]

I am sorry, I just felt that the closing remarks of the noble Lord, Lord Howarth, when he said that government policy lacked coherence in this area, were belied by the contribution that I had made in the previous debate on the amendment moved by the noble Baroness, Lady Meacher.

[Lord Howarth of Newport]

I did not say that the policy lacked coherence; I said that I thought it was wrong to ask the House to legislate before the Government had demonstrated that these new legislative provisions were part of a coherent and decent policy.

[Lord Taylor of Holbeach]

In which case, I am in the process of doing just that. Perhaps we can draw a line under our little spat. Indeed, I was going on to talk about the ways in which the people who are responsible for seeking gang injunctions do bring professional expertise to these matters.

As I was saying when the noble Baroness, Lady Meacher, intervened, gang injunctions for adults have been available since January 2011, and gang injunctions for 14 to 17 year-olds have been available since January 2012. I hope it reassures the noble Lord, Lord Howarth, that when applying for injunctions against minors, the applicant must consider their duties towards young people in general, including the general duty to safeguard and promote the welfare of children, together with any child protection issues that arise in a particular case. In doing so, the applicant would be expected to seek the views of any social services or children’s services department that is engaged with the child.

The findings of a review of the operation of gang injunctions, published in January 2014, indicated that the definition of a gang used in the Policing and Crime Act 2009 has some limitations for addressing local gang issues. I am sure that noble Lords would expect the Government, having found those limitations, to come forward with amendments to address them.

Section 34(5) of the 2009 Act specifies the circumstances in which gang injunctions may be made. The court must be satisfied that,

“the respondent has engaged in, or has encouraged or assisted, gang-related violence”—

that is the fundamental requirement. “Gang-related violence” is defined as,

“violence or a threat of violence which occurs in the course of, or is otherwise related to, the activities of a group that … consists of at least 3 people … uses a name, emblem or colour or has any other characteristic that enables its members to be identified by others as a group, and … is associated with a particular area”.

We are not talking about stop and search here; we are talking about collective activity. Following consultation with practitioners, we have concluded that this definition is too restrictive and, more importantly, does not reflect the true nature of how gangs operate in England and Wales.

Gangs do not always have a name, emblem or colour or other characteristic which enables their members to be identified as a group. Instead, individuals may operate as a group and engage in criminality with some degree of organisation without these features. Although gangs are traditionally associated with particular territories, they are now increasingly involved in criminality beyond their own areas and can be less associated with a particular area. Gang structures are now seen to change over time—they are morphing—such that it is possible for gangs to disappear from certain locations and reappear in other locations relatively quickly. Gangs may move to other locations as a result of black market forces or being pushed out by rival gangs.

In order to reflect the changes in the way gangs operate, Clause 47 amends the 2009 Act to revise the definition of gang-related violence. Under the new definition, violence will be gang-related,

“if it occurs in the course of, or is otherwise related to, the activities of a group that … consists of at least three people”—

that remains—

“and has one or more characteristics that enable its members to be identified by others as a group”.

It has been suggested that this definition is too wide and that any group of three or more people identified by others as such could be affected by this legislation. I assure the Committee that this is not the case. Being part of a gang as defined by this clause is the first stage of the process but courts will also need to be satisfied that the defendant has been involved in violence and that any such violence is related to the gang. Of course, only courts can impose a gang injunction, after they are satisfied that it is necessary to do so.

In addition, evidence from police and local authorities shows that urban street gangs often engage in street drug-dealing on behalf of organised criminals, and some gangs aspire to and may become organised crime groups in their own right. That is why we are expanding the activity in relation to which gang injunctions can be imposed to involvement in the drugs market. This will allow gang injunctions to be used to prevent individuals from engaging in drug-dealing and to protect people from being further drawn into illegal drug-dealing, which is particularly important for vulnerable people, in particular teenage children, of whom we spoke earlier.

The noble Lord, Lord Howarth, has raised some wider points about the Government’s overall drugs strategy. The noble Lord’s view is that the strategy is not sufficiently focused on tackling the root causes of demand for illegal drugs which drive this market. I agree with the noble Lord that reducing the demand for drugs is essential to successfully tackling this issue. Indeed, it is one of the three strands of the Government’s strategy, which balances action to reduce demand alongside support for individuals to recover from drug dependency and ensuring that law enforcement effectively protects society by restricting the supply of drugs.

We are confident that this approach is working. Drug usage has fallen to its lowest level since records began in 1996. Figures on the level of overall drug use among young people in 2012 show that 17% of pupils aged 11 to 15 reported ever taking a drug, compared with 29% in 2001. There is a marked fall in the use of drugs among young people.

[Lord Howarth of Newport]

The Home Office is fond of quoting certain statistics that are, I am sure, correct, and demonstrate declining use of certain drugs. Can the noble Lord, however, tell us whether the use of class A drugs has fallen? What is his view on the consumption of new psychoactive substances, which are also drugs, even if not proscribed under the Misuse of Drugs Act 1971? Surely the overall picture is far less comforting than he seeks to persuade us it is.

[Lord Taylor of Holbeach]

I accept that. I am not at all complacent about the role of drugs in society and I think the noble Lord knows that. However, I am saying that we have, through our strategy, at least reduced consumption over the past few years. It is an important element—we know that 45% of acquisitive crime, for example, is estimated to be carried out by opiate or crack users. It remains a matter of concern. Nobody is complacent about this—I did not want to create that impression. However, I also wanted to reassure the noble Lord and the noble Baroness that we are driving this policy hard because we recognise the damage that drugs do in society. We continue to do all we can to prevent people using drugs in the first place, and to intervene early with those who start to develop problems, for example by developing an online alcohol and drug education and prevention information service. This work to reduce demand for illegal drugs is crucial, but I am equally clear that we need to provide the police and local authorities with the tools they require to intervene to prevent the harm caused to communities by gangs who are involved in drug dealing and to divert young people on the periphery of this world away from gangs before their involvement becomes serious.

The whole point of this clause is to improve our response to gang-related violence and involvement in illegal drug dealing by redefining and extending the scope of these injunctions to ensure they better reflect the reality of gang culture in England and Wales. Of the 109 gang injunctions issued, 45% have been breached. Interim injunctions were granted on the authority of the court. It needs to act proportionately when it considers these matters. We never expected large numbers of gang injunctions to be used. They are aimed at preventing gang-related violence, and they are a useful tool for local partners to use in the right circumstances for the right individuals. The changes in this Bill will enable more effective targeting of those not directly involved in violence but who could influence violent activity. I say to the noble Lord that legal aid is available for gang injunctions, including costs incurred for a lawyer to represent a person in court. Legal aid also covers breach and variation hearings.

I have tried to cover most of the points raised by the noble Lord in his intervention. I apologise to the noble Baroness—I did not mean to cut her off from this debate, and if she wants to say a few words on this issue I am happy to do my best to reply to them too.

--- 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.