Modern Slavery Bill

Baroness Hamwee Excerpts

Monday 1st December 2014 Lords Chamber

[Baroness Butler-Sloss]

My Lords, I should like to make a short point on these amendments. I consider the proposals put forward by the noble Lord, Lord Alton of Liverpool, to be extremely interesting. The idea that the proceeds, if there are any, should go not only to victims but to other organisations is one which, as the noble Lord, Lord Alton, has said, attracted the Home Secretary. I would particularly like to refer to the idea that 25% of proceeds should be distributed to organisations whose purpose is to prevent slavery. One example is that of the Bedfordshire police who spent an enormous amount of time and effort, and a great deal of the police budget, in managing to bring the Connors family to justice. They were the Gypsies who had a large number of men living in appalling accommodation. They had recruited them from homeless units or soup kitchens by offering them money but then treated them in the most appalling way. They eventually took a great many of them to Sweden, trafficking them from the UK to Sweden, where they were living in caravans again and working 18 hours a day on construction sites without receiving a single penny. They in fact came back to England but I am not sure we looked after them very well when they came back. The Bedfordshire police did an extremely good job and it cost them a great portion of their budget. Andrew Selous MP has raised this issue on various occasions and I am happy to raise it again in this House. That is the sort of organisation which ought to be compensated to some extent for the use of its budget—way beyond what is normal—to get a prosecution of a large group of very successful and very wicked traffickers.

Of course, as the noble Lord, Lord Warner, has said, unless you have the money you cannot give it out to anybody else. The Government are to be congratulated on adding criminal lifestyle offences to Clause 7, taking the provisions from the Proceeds of Crime Act. I suggest to the Government that they really ought to look at civil proceedings before the arrest has been made. If the intention is to make an arrest, knowing that the lifestyle of a particular person makes them likely to be a trafficker and therefore likely to be prosecuted, you want to catch the money before he is arrested because otherwise the minute he is arrested he will get it out of the country. Anyone can get money out of the country extremely fast. Therefore, there should be some provision in the civil courts—by which I mean the High Court in particular—that where there is sufficient evidence to be able to make an arrest there should be not a confiscation but a freezing order. Freezing orders are perfectly well known right through the civil courts. If you can get a freezing order a few days or weeks before the actual arrest is made, you may take the trafficker unawares. That is where you get the money to get the pot of the noble Lord, Lord Alton, sufficiently filled. There is no question that this is either the second or third most profitable criminal enterprise in the world. It is worth something in excess of $30 billion, quite a lot of which comes through this country. It does not stay long enough, but if we can get it in the civil courts, it can fill the pot that the noble Lord, Lord Alton, wants.

[Baroness Hamwee (LD)]

My Lords, the amendment in the name of the noble Lord, Lord Alton, is very interesting, particularly, as has been said, as it identifies the work done by organisations and the need for them to be funded to support individuals, as distinct from compensation going directly to an individual. It is complicated work, and in many cases very long term. However, I am sure the noble Lord would agree that nothing this might provide should let the state off the hook of its responsibilities. I am not sure about naming the organisations in regulations, but that is a detail.

As regards the work of the police—the noble Lord mentioned ARIS, and the noble and learned Baroness mentioned the Connors case—I am aware of another case where a different force put together a hugely detailed and complex plan for multi-agencies to be available when they raided premises and rescued a number of individuals. That must have cost an enormous amount of money. It was very important that those who were found in forced labour—I do not think that the case has come to trial yet, but I suspect that it will be forced labour—are received in a sensitive way and helped from the very beginning. That is intrinsically important, and it is important to ensure that they are in position to give the evidence that the police need to be able to proceed and do not disappear into thin air, as sometimes happens in these cases; facing authority, they do not want to have anything to do with it. Therefore, I am very pleased that the noble Lord has brought this to the attention of the House.

I will make one other small point on organisations that do this work. It sometimes seems that the smaller and less formal organisations are the most successful, because they are less likely to be perceived as authority by those whom they seek to help.

On the amendment in the name of the noble Lord, Lord Warner, my view remains the same as when we discussed the matter in the Serious Crime Bill. Of course we should assess and evaluate the impact of the changes made by the Bill—which is still a Bill—and be prepared to make changes. I was worried that it was not sensible to have a consultation that runs in parallel with the introduction of some changes that were being made by the Bill, which might be rather confusing. April 2015 is very close—there will not have been much experience, if any, of the changes included in that Bill; I am not sure when it is likely to be commenced. Therefore, the point about review and assessment and evaluation and consultation in general is good; I am worried about the timing.

Modern Slavery Bill

Baroness Hamwee Excerpts

Monday 17th November 2014 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, something very significant happened two or three weeks ago. Forced labour featured on television in an episode of “Scott & Bailey”, with some very sensitive questioning, I am happy to say, by the police officer involved. I wonder whether it will do as much to raise public awareness of slavery as the body under the patio in “Brookside” did for domestic violence.

In the preface to his review of the national referral mechanism, Jeremy Oppenheim comments on,

“the commitment across sectors, organisations, disciplines and generations”,

but even so,

“there are passionate differences of opinion as to how to achieve”,

the goal of erasing the evil of trafficking. I thank all those who have briefed us; their commitment shines through. Like others I welcome the Bill both for what it is and as an opportunity to do more to achieve that goal.

I am happy to be able to congratulate the maiden speakers at this point. All three made clear their enthusiasm to contribute to the work of the House, although I have to say, in the rapidly decreasing temperature of the Chamber, that I could have done without the mention of crumpets. I know that all three will contribute very effectively.

It is obviously not possible to cover every issue at this point, but I start as others have done—and as we should always start—with the victim, or as the noble Baroness, Lady Goudie, said, with the survivor.

The Bill’s provisions are welcome. It is shocking that someone cultivating cannabis can be prosecuted while his traffickers are not. We will examine whether “compulsion” and “characteristics”—terms used in the Bill—are wide enough, as well as whether the crimes excluded from the new defence need a more subtle approach. A victim may need considerable time, patience, professional expertise and therapy to be able to tell his or her story. The right reverend Prelate rightly reminded us that this is not to be confused or conflated with the 45-day period. There are risks of retraumatisation by requiring the victim to relate and repeat the story. There are so many matters about which so many of us need more understanding.

The reasons why someone may not be able to give a complete or consistent story is an issue for everyone, including those in the criminal justice system. The noble Baroness, Lady Newlove, said, and I agree, that if we use the person only for evidence then we are committing abuse again. The first encounter with the criminal justice system is very significant. Not all police forces make preparations to receive victims when they are rescued with the appropriate care and support. Not all are alert to the need to preserve evidence. I understand that in New York the police immediately photograph the living conditions of people who have been found in servitude before anyone has a chance to make everything look normal; they may bring in health and safety officers, for instance. We must not overlook support for those who are working on these issues in a range of capacities. Everyone’s resilience, even judges’, has its limit. What happens when the breakdown van breaks down?

From this country, through the Foreign and Commonwealth Office and DfID, we are providing training through the preventing sexual violence initiative in countries affected by sexual violence in conflict, where many of the same issues arise. Let us use the expertise here for ourselves. An area of information and training across all relevant sectors and stakeholders is something that I too would like to see embraced by the commissioner.

Like others, I am disappointed that the appointment of the commissioner went ahead based on a job description written before Parliament had agreed what that job should be. Like others I hope that it will be about more than enforcement. The word “holistic” is overused but it should be used here. Nevertheless, I trust that we can consider the role, remit and powers applied to carry it out. The Home Secretary herself has said that the protection of victims is part of the role, although that does not appear in the Bill. A lot will depend on the individual, as it does with many of the commissioners, but it is a pity that the commissioner has not been appointed as a cross-departmental position, which, as others have reminded us, is the case in the Netherlands and Finland. After all, the interdepartmental ministerial group that we have includes the MoJ, the Department for Education, the Department of Health, and the Foreign and Commonwealth Office, so we have accepted the principle. Others have referred to the importance of reporting directly to Parliament. The JCHR remarked that the commissioner,

“looks very much like a creature of the Home Office, with very little interaction with Parliament”.

The Bill is about people, but it must be right technically. I confess to having concerns about the definitions. Are they complete in themselves? Do they leave any lacunae, particularly as trafficking is an international crime and needs an international response? Are they sufficiently extensive? I am particularly concerned about exploitation, which may not be quite forced labour—although so far I am with the noble and learned Baroness on this. I am not persuaded that a separate offence of child exploitation is desirable. I am talking not about necessity but about desirability because of difficulties, for instance, regarding the establishment of age. I am very aware that consent is relevant in the cases of many who are not children, as well. The supply chain provisions are or should be detailed technically. They will amount to little if there are no effective sanctions. The noble Lord, Lord Alton, listed the recommendations of the coalition working on this and I will not take more time on it now, although I would like to.

The JCHR has reminded us that the UK’s scheme for overseas domestic workers between 1998 and 2012, when the visa rules allowed for a change of employer but not of sector, was cited by the ILO and the UN special rapporteur as best practice. The logic of that tells me that what we have now is not best practice. There seems to be widespread agreement—although, sadly, not extending to the Home Office—that allowing a change of employer is the only way of addressing the situation. The point at which an officer at a port of entry hands over a card—in English, I assume—detailing the worker’s rights, or more likely slips this inside her passport, which her employer then takes from her, may be the last time that that woman is visible.

Looking at the civil orders included in the Bill, we must not, of course, forget our own values in other ways too. The JCHR has recommended an explicit reference to the applicable standard of proof, in other words akin to the criminal standard. The Government say that it is sufficient to rely on case law. With regard to criminal behaviour orders, the same was initially said during the passage of the Anti-social Behaviour, Crime and Policing Act. To my delight—one occasionally has these small triumphs—that was then amended, when the Government had decided, according to the noble Lord, Lord Ahmad of Wimbledon, that there were grounds for making that change “on reflection”. I cannot remember whether he had more or less than 45 days to reflect on it, which is another matter to which we will come back. I am with the noble Baroness, Lady Hanham, in this area. I am also fairly clear that the orders, as they are, are not clear or not clear enough. We risk failure unless both the legislation and the guidance are tightened up.

My noble friend Lady Suttie remarked to me, although not during the debate, an interesting point about assessing the costs and benefits of extending the remit with the necessary resources of the Gangmasters Licensing Authority. It appears perverse not to extend the good experience to sectors where we know there are bad experiences. Last week I heard of another failure to join up the dots. A woman who had been trafficked was held in immigration detention, but never referred to the NRM.

In the debate that we had on supply chains, I quoted Frederick Douglass, the African-American who escaped slavery to become a social reformer. I will end by indulging myself with another quote from him:

“Man’s greatness consists in his ability to do and the proper application of his powers to things needed to be done”.

This Bill has been notable for the cross-party approach at all stages. My noble friend Lady Doocey mentioned the shared sense of purpose of the pre-legislative scrutiny committee. All politicians and those of no party want to do the best. There is remarkable uniformity across the House so it is appropriate to end with Oliver Twist’s request for more.

Asylum Seekers: Mental Health

Baroness Hamwee Excerpts

Monday 10th November 2014 Lords Chamber

[Lord Bates]

The six-month period applies broadly across Europe. We have arrived at the figure of 12 months but the key is to speed up the decision-making process. However, during that time we encourage people to undertake volunteering, learn the English language and take IT courses. They can get support with those types of initiative.

[Baroness Hamwee (LD)]

My Lords, I have heard concerns expressed by the BMA and others about the desperate need to train doctors and other workers who deal with people in immigration detention, including, particularly, to train them in awareness of post-traumatic stress disorder and other conditions from which asylum seekers and some other immigrants are likely to suffer. Is there better training provision outside detention?

[Lord Bates]

The numbers going into detention on what is called a fast-track process are relatively small—about 15% of the total. We contract with Migrant Help, which does excellent work in providing advice to asylum seekers during their application process—for example, helping them register with a GP or getting their children enrolled in school. Progress is being made but I accept that we are talking about very vulnerable people.

Serious Crime Bill [HL]

Baroness Hamwee Excerpts

Wednesday 5th November 2014 Lords Chamber

The purpose of the amendment is to make the law crystal clear that it is always an offence to send sexual messages or to elicit sexual messages from a child to make it easier for the police and the authorities to intervene at an early stage before harm is caused to the child. I beg to move.

[Baroness Hamwee (LD)]

My Lords, as I did on Report, I support the principle of this amendment. Listening to the last example given by the noble Lord—“Honey, you look hot in your bikini”—if I were a mother with a young teenage child who had received that message and I went to the police, showed them the message and was told, “There’s nothing wrong in law here”, I would have less confidence in our legal system.

I am not convinced that a new offence is not needed, as has been argued. I have not looked at Section 78; indeed, I have not done as much detailed work as perhaps I should. Listening to the noble Lord, however, I find quite a difficulty in a “sexual communication” that comes from someone and “sexual response”. It seems that a sexual response is needed for these offences, but that of course that is not at all how the child sees it. Yes, we are accustomed not to seeing but to knowing that there are a lot of photographs around with people topless on beaches, often celebrities seeking to attract attention. I am not sure that I would like to go down the route of trying to analyse their motives.

If there is to be an amendment, it must be right. The worst thing would be if there were inherent problems within it. I do as I did before and I hope it does not provoke teasing from the noble Lord; I assure him that I am trying to be supportive in this. I thank the NSPCC, with which I had the opportunity to meet briefly at the beginning of the week. I understand that it is consulting more widely on this. I do not want to refer to all the points that I have made, either in the previous debate or with the NSPCC, but I am glad to see that it is now suggested that the offence should be put into the Sexual Offences Act 2003, because that gives the context for penalties. I am not sure that there are penalties attached to this amendment.

I see that the words in proposed new subsection (4) come from Section 73 of that Act. I am not sure whether repeating them in a slightly different way in this amendment does not cause a bit more difficulty. In Section 73, they are a defence against aiding, abetting and so on. I think they may be interpreted there not as an exhaustive list, but there is a question in my mind as to whether in this amendment they are an exhaustive list.

Finally, in the context of online grooming, the terminology of “reasonably believe” in proposed new subsection (1)(b) causes me some concern about the evidential problems. Something like “making reasonable endeavours” to establish whether B is 16 or over would better lend itself to giving evidence to the court.

What all this amounts to is not opposition but urging us to get this right. Whether we get it right today or, as I said on Report, by an amendment during the Commons stages of this Bill, I hope that we end up with something that is workable, acknowledges current technology and is not simply defensive of the offences that are on the statute book at the moment. I am usually the first to say that if there is already something that covers this, we should not be looking for something else, but with this issue we should be looking for something else.

--- Later in debate ---

[Baroness Butler-Sloss]

My Lords, had the noble Baroness, Lady Meacher, tabled this amendment I would have put my name to it. I do not want to take up time at Third Reading to repeat what the noble Baroness has said, but I ask the Minister to be in touch with those in the Home Office who will be dealing with the Bill in the other place, and not to disregard what she has said. It is really worth having a further look at this serious matter. There are communities which, as the noble Baroness, Lady Meacher, has said, are different from most of us and where there is a degree of not just influence but power among certain elements of those communities. That leads to this appalling FGM taking place on children in this country. I am also supportive of what the noble Baroness, Lady Smith, said. This is a good part of the Bill and the Government are to be congratulated on it. However, they could do better.

[Baroness Hamwee]

My Lords, the Government have made enormous progress in addressing the legislation so well, to the extent that a Government can in practice respond to FGM. Like others, I encourage the filling of a gap which seems to have been identified. I do not want to say more this afternoon but I wanted to put on record my support for the noble Baroness and my admiration for her keeping going on this issue.

Slavery

Baroness Hamwee Excerpts

Thursday 30th October 2014 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I thank the noble Baroness for giving us the opportunity to debate this issue which she has described very vividly. I also thank the Library for its useful briefing.

Human rights are not optional, so compliance with them should not be optional or voluntary either. In some—perhaps many—parts of the world, this may not seem to be the case. The more I think about this, the more obvious it is that economic factors and a lack of education—and obviously the two often go hand in hand—play a huge part in exploitation, forced labour and slavery.

Frederick Douglass, the African-American social reformer, who himself escaped slavery and became the leader of the abolitionist movement, achieved literacy despite the law prohibiting the teaching of slaves to read. He said:

“Knowledge makes a man unfit to be a slave”.

DfID may have a claim to be the lead department in this area, save that we cannot avoid the unpalatable facts of what happens in our own country. As the noble Baroness mentioned, there is a national and international list—and it is a much longer list than I will give. It includes cannabis farms, block paving, domestic servitude, agriculture and fishing, the sex trade and the manufacture of clothing, electronics and surgical instruments. I was startled to see that in a briefing from the BMA. Surely medical products must often be so specialised that there is considerable scope for assurance as to the conditions in which they are made as part of quality control. According to the BMA, elsewhere in the NHS and in care homes there is too much dependence on local—and I would also say immigrant—labour. We should not exploit it. Others will add more to the list.

When the Minister introduces the Bill we shall have the provisions to which the noble Baroness referred regarding transparency in supply chains, with the interesting possibility of a mandatory injunction on the application of the Secretary of State. I am sure that my noble friend will not claim that a duty on companies of a certain size to make a statement is more than a step, albeit a welcome one. He will be asked what the Government have in mind about size and turnover. Is the Minister able—perhaps then if not now—to tell the House what ideas flowed from the ministerial round table held in June and from the follow-up workshops?

It is essential to work with those to whom the new requirements will apply. I know that the British Retail Consortium is involved and I have seen evidence from it. TiSC requirements should not let us off the hook, rather as turning off the tap when brushing your teeth does not make it OK to have a two-foot deep bath during a water shortage. There is quite a read across from behaviour in respect of environmental issues. I wonder whether the “nudge unit”, or whatever that part of the Cabinet Office is called, is involved. If it is not, with regard to public awareness, behaviour and response, I think it should be.

We consumers have our consciences but we do not just need ammunition to challenge manufacturers and others; we need spoon-feeding. Fair trade brands are so helpful, as are easy-to-understand labels on domestic appliances. We may respond to ethical investment and be keen on ethical auditing, but we need information that is easy to follow. The media have a big role in disseminating information and in exposing bad practice and celebrating good practice.

Not everyone, however, can vote with their wallet or credit card and the undercutting of companies in whose business model reputation is important is an obvious problem. It seems not only that reputation is important over the counter, or over the virtual counter of the internet; every employer should want to be one for whom staff want to work for ethical reasons. That is also part of a business case.

In the context of sex trafficking, there used to be a lot of reference to reducing demand but that seems to be less the case recently, which I think is right. However, both demand and supply are relevant to a range of labour exploitation. The ILO’s forced labour definition covers all exploitative purposes of trafficking except organ removal. The ILO says that the annual profits per victim are highest in the developed economies, which I think gives us pause for thought, because for the perpetrators this is about money and getting at the money is very important. The Minister has been much involved recently with the Serious Crime Bill, as have many other noble Lords, which seeks to address this issue.

Transparency International says that the Bribery Act is also relevant. Many companies have supply chains, or are part of supply chains, in countries where there is a high risk of bribery. Therefore, we need “adequate procedures”—a technical term—to prevent bribery, including due diligence on suppliers and requiring suppliers themselves to have adequate procedures. I cannot help thinking how much advice and training will be required in this field. I also cannot help wondering—I am certainly not asking the Minister to respond to this tonight—whether this House is happy with its own procurement arrangements.

In material I was reading in preparation for today’s debate, the ILO used the apt phrase,

“profits generated on the backs of … victims”.

As well as seeking to tackle slavery and exploitation, we have a responsibility towards victims. That is a matter we need to address every day but, in terms of debate, perhaps it is a matter for another day.

I quoted Frederick Douglass’ words:

“Knowledge makes a man unfit to be a slave”.

He also said:

“No man can put a chain about the ankle of his fellow man without at last finding the other end fastened about his own neck”.

--- Later in debate ---

[Lord Young of Norwood Green (Lab)]

My Lords, I congratulate my noble friend Lady Kennedy of Cradley on creating a precursor debate before we come to deal with the Modern Slavery Bill. The debate has been interesting and my noble friend’s opening contribution was very powerful. It covered the waterfront and the land masses as well. As I listened to her, I thought, “You could have left us something to cover”, but I say that in tribute to how comprehensive her coverage was. It just went to show the extent of the problem.

I declare a prior and continuing interest as, until recently, vice-chair of the Ethical Trading Initiative, an organisation that I have been involved with for many years. If I have learnt anything, it is about the sheer complexity of supply chains. They are not easy beasts to deal with. At the end of supply chains there are first-tier contractors, second-tier contractors and third-tier contractors. Companies will supply you with a set of books to suit whatever requirement you have, so businesses may have one, two or three sets of books. They know when you are coming and if there is any child labour, it will disappear. We should not underestimate the challenge that companies face in trying to root out some of these evil practices from their supply chains.

I congratulate the Government on their commitment to this issue and on making space in the legislative programme for the Modern Slavery Bill. I pay tribute to the work of Frank Field in the other place and to the commitment and involvement of the noble and learned Baroness, Lady Butler-Sloss, and my noble friend Lady Kennedy.

I want to focus on the business of transparency and disclosure requirements in supply chains. I do not much like the acronym TiSC. It might trip off the tongue but it is not very graceful. The noble Baroness, Lady Hamwee, talked about the sheer scale of slavery, as reflected in the ILO report. The number of people involved in it is absolutely staggering. About 21 million men, women and children are in forced labour. We know that we have not abolished slavery by any means. It is worldwide and unfortunately alive and flourishing in the UK as well. I do not want to reiterate what others have said, but global profits are estimated at $44 billion and $32 billion is generated by human trafficking. These are colossal figures. In 2014 humanity ought to be ashamed that these practices continue.

The forthcoming Bill is a welcome step in the right direction. As a number of noble Lords have said, we want a disclosure requirement for companies in the Bill. I do not apologise for repeating what my noble friend Lady Kennedy said in identifying this. There should be a clear commitment from the chief executive and chairman of a company. I know from experience that if you do not have that commitment at the top it is not going to work. What you tell buyers and suppliers is no good. They need to see that there is real commitment right at the top of companies.

Disclosure should include, as a minimum, how risks have been identified throughout the supply chain, who has been involved in the identification of such risks, what action has been taken once risks have been identified and the steps taken to address modern slavery, if it is identified. The minimum requirements should be specified in primary legislation.

My noble friend Lady Kennedy talked about a threshold of £60 million. The figure is taken from Californian legislation. Whether it is the right figure is probably open to debate. The right reverend Prelate the Bishop of Derby made the interesting point that a lot of smaller companies could be involved. A lot of them would be involved in the supply chains of bigger companies so a debate on who is going to be covered by this threshold is merited.

The disclosure should be published in a company’s annual report, on its website and provided in writing on request. Foreign companies operating in the UK are not required to produce an annual report, but they should provide a stand-alone modern slavery disclosure to the Department for Business, Innovation and Skills. Otherwise, we will find a whole group of people who are actively trading in the UK and who could be using forced or slave labour, but who are not included here. I do not think that would be right.

One question that I do not think has been raised is that of domestic worker visas. Changes to the Immigration Rules were introduced in April 2012 and under the system now in place new domestic workers in private households are able to stay in the UK only for a minimum of six months. They are no longer able to change their employer in the UK. The same thing applies to staff in diplomatic households. They are able to stay for up to five years but they can no longer settle permanently and, as before, they cannot change an employer in the UK. If you cannot change your employer in the UK, that is creating fertile grounds for you to be in a form of modern slavery. There have been enough cases in the press for us to know that this is not just people thinking about a worst case scenario. It actually happens and is an indictment on us. I would welcome the Minister’s response on that issue.

[Baroness Hamwee]

I just used the words “domestic servitude”, having all this in mind. That is not why I have risen. Does the noble Lord agree that there must be some sort of supply chain in the countries where some of these migrant domestic workers come from, where they are initially employed and then brought to this country by their employers? The term “supply chain” should cover that kind of relationship and arrangement as well.

Parliament Square: Occupy Protests

Baroness Hamwee Excerpts

Tuesday 28th October 2014 Lords Chamber

[Lord Bates]

The noble Baroness is a Member of your Lordships’ House; she is free as a parliamentarian to propose any laws that she wishes; but the reality is that in 2011 your Lordships decided by an overwhelming majority that they wanted this law and they wanted this space for public peaceful protest.

[Baroness Hamwee (LD)]

My Lords, I am sure that the Minister will tell us that the number of police is an operational matter for the police, but I am also sure that Home Office Ministers are not entirely uninvolved in the policy. Does he agree that the lightest practicable touch is as much as we would want to see applied?

[Lord Bates]

I understand the point my noble friend is making, but what is a light touch when you are faced with a protest that begins at 50, grows to 100, and then grows overnight to 150? The potential for that to get out of hand, and the risk to the public, is something which the police clearly take seriously, and they are right to do so.

Serious Crime Bill [HL]

Baroness Hamwee Excerpts

Tuesday 28th October 2014 Lords Chamber

[The Lord Bishop of Rochester]

My Lords, I hesitate slightly, as a male religious leader, to speak in your Lordships’ debate on this matter, but it may be important that I do so. I also hesitate to plunge into the legal niceties that have been raised so clearly by those with more knowledge of such matters. I added my name to Amendment 44A largely because of a phrase in subsection (5) of proposed new Section 63T of the Family Law Act. It states that,

“it is immaterial whether she”,

that is, the girl or woman concerned,

“or any other person believes that the operation is required as a matter of custom or ritual”.

The context for that subsection is the possibility that an operation might be justified on the grounds of the physical or mental health of the person concerned and that wording makes it clear that custom and ritual cannot be used as support for such an argument.

We are rightly proud of our national values, whereby we respect and indeed treasure the richness of many and varied cultural and religious traditions, beliefs and practices within the life of our national society. But that proper respect for a wide range of such beliefs and practices does not mean that they are all either good or commendable. It is my view that in female genital mutilation we have a practice that we simply cannot condone, even when it is done out of respect for a particular cultural or religious tradition. FGM is at heart, as has already been graphically described, an act of violence and abuse. It is one that is often associated with control—sadly, male control over women. For somebody from my tradition, it is actually an interference with our human createdness in a way that carries no benefits for health or anything else. It is, indeed, the physical removal of the potential for sensual pleasure which is part of our human and sexual createdness. The Church of England’s marriage service, or at least its current version, speaks of the “joy” of bodily union. FGM removes that possibility. For that reason and others, I support this amendment and its intent. Whatever emerges from this debate, I hope that the reference to custom or ritual will remain within whatever emerges as an Act.

[Baroness Hamwee (LD)]

My Lords, I do not need to reiterate the feelings of abhorrence at the practice of FGM and the enormous number of girls and women who are affected by it. The right reverend Prelate has a very important role in this debate. He should not have hesitated to intervene.

I wish to address a couple of points before I speak to my amendments, which are minnows and just seek clarification. I agree very much with what the noble and learned Baroness said. As one who has been in the lower orders of the legal profession, I am impressed by the way in which members of the judiciary have specialised and gained expertise in a number of areas over the years. I hesitate to make my next remark, and should tug my forelock in doing so, but it is hugely important to ensure that certain members of the judiciary have considerable knowledge and experience of the areas in which they pass judgment. Practice and practical arrangements are also enormously important.

I do not want to argue that this amendment is better than that amendment. However, if there is to be further discussion, which I would never discourage—we talked about consultation on the previous amendment—let us not forget that it need not happen by Third Reading. If there is to be further consideration, it needs to be done well and carefully. The Bill has further stages to go through in the Commons. We are all accustomed to Members of the Commons saying on the record in Hansard, “Let’s send it to the Lords and let them sort it out”. On this occasion, there is time for sorting out to be done, if that needs to happen, before the Bill completes its passage through Parliament. As I say, it need not be done by Third Reading, which is not very far away. However, it is important to have something in the Bill on which any further consideration can build. Therefore, I suggest to the House that we should support the government amendments so that we have them as a basis.

As I said, my amendments are minnows. Nevertheless, I will speak to them. The first is Amendment 46C, which seeks to amend government Amendment 46B on anonymity. I seek to understand the import of “substantially” at line 23 of government Amendment 46B. My amendment suggests replacing “substantially” with “significantly”. It is obviously for the court to decide whether a defence would be prejudiced and to what extent it would be prejudiced. Are there any comparable provisions containing this sort of balance elsewhere in the criminal justice system, given the presumption of someone’s innocence until they are proved guilty? I also ask for confirmation that the restriction here applies on an appeal to a higher court.

My second amendment, Amendment 46D, is to the same amendment, dealing with the second condition in the court’s consideration, where it is provided that the effect would be to,

“impose a substantial and unreasonable restriction on the reporting of the proceedings”.

What might a substantial restriction be that is not an unreasonable restriction and why is the extent of the restriction relevant?

My third amendment is an amendment to Amendment 46E, which is the offence of failing to protect. Again, in order to probe, I am seeking to leave out from proposed new Section 3A(1) the words “under the age of 16” as describing a girl. Indeed, should it be “a girl” or “a girl or woman”? Does girl include a woman? I have not got the words quite right, but that is the import of the provision in the 2003 Act. Why 16? It may in practice be very rarely necessary to seek an order in respect of girls aged 16 and over, but it seems it is not completely irrelevant. The 2003 Act does not have that age limit on a girl and indeed provides for women to be covered as well.

In proposed new Section 3A(4) we are told that a person is responsible in one case where that person has parental responsibility and has frequent contact with the girl. Is frequent contact necessary and, indeed, is it appropriate? How frequent is frequent? I would guess that we expect case law to grow up around this, but I would be grateful for any comments that my noble friend might have. Does parental responsibility extend to care as under Section 3(5) of the Children Act? How does that definition of parental responsibility fit with proposed new Section 3A(5) where there has to be an assumption of responsibility for caring for a girl in the manner of a parent.

I hope that none of this is thought to be too pedantic and too picky. Like others, I am very keen to see these provisions work. If I have by chance lit on anything which needs more explanation than I have been able to apply to it in my own head, then it would be useful to have it on the record.

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[Baroness Butler-Sloss]

My Lords, I intended to put my name to this amendment, which I support. It seems to me that it is more important as a deterrent than probably for prosecutions. Among the various groups that exist—one hopes that they are a really small minority—as the noble Baroness just said, it is very important that the English law is made absolutely clear, as well as the law of Islam. Of course, as the noble Baroness, Lady Tonge, just said, this occurs across other religions. That deterrent has, in other areas, quite a useful effect on culture, and that seems to me the most important part of this. I suspect that there will be very few prosecutions, but what is said in English law may permeate through a number of groups where those who disapprove of this already would then be able to point to the fact that it was also contrary to English law, and those who might want to get involved in this would be deterred from actually supporting it. I, too, support this amendment.

[Baroness Hamwee]

My Lords, towards the end of her speech, the noble Baroness, Lady Meacher, referred to what was troubling me, which is whether we are talking about general encouragement—if I can put it that way—or encouragement to commit a specific offence. Like, I suspect, those in the conversations she had just before coming into the Chamber, I am puzzled by the presentation of the amendment as meaning general encouragement, because I do not read it that way either. With the wording, “to commit an offence”—a specific offence—I thought that the noble Baroness was getting to grips with what is meant by “promotion”, which was the bit that I found difficult to get my head around in terms of its application in the predecessor amendment. However, the noble Baroness told us that it is the reference to “the other or others”—in the plural—which changes that. Bluntly, I do not follow that. I hope that, when she winds up, the noble Baroness will be able to convince me. The offence of FGM might surely and not unusually be committed by more than one person in the case of a single girl. That was certainly how I read this. It is not about committing offences; I read the provision as being about a particular, specific victim.

Of course, I do not take issue with the noble Baroness about the cultural problems and so on. However, I hope that my noble friend will convince the House that this is covered by the Serious Crime Act 2007, with its Part 2 on encouraging or assisting crime. There are extensive provisions in that part. If that applies, then I would not be particularly keen on having a specific offence when it should be covered by the general provisions. It is better that the general should apply to all criminal offences and not have something separate which actually does not amount to anything different. It is the difference that I am looking for.

[Lord Dobbs (Con)]

My Lords, I am filled with some trepidation and hope the House will indulge me. I have not involved myself in talking on this Bill before. I will do so now very briefly, with the leave of the House, because I think the issue is so important.

I congratulate the noble Baroness on the objective behind this amendment, but we already have a great deal of law in this area and we are to get a whole lot more once this legislation is passed. However, the law itself is not the answer to what I think the noble Baroness seeks to achieve, particularly with an amendment that, I fear, is all too vague. It refers to,

“encouraging or assisting with the promotion of the practice”.

Does that, for instance, include a tribal elder discussing cultural traditions or a parent discussing the family’s heritage and ethnic customs with a daughter? The noble Baroness talked about authentic and unauthentic version of religious tracts. These are very tricky, difficult areas. What precisely do those words mean? I fear that they do not precisely mean anything.

[Baroness Hamwee]

My Lords, I do not mean for a moment to embarrass the noble Lord, but I wonder whether he is speaking to the original Amendment 45 rather than Amendment 45A.

[Lord Dobbs]

The new clause in Amendment 45A is headed:

“Offence of encouraging or assisting with the promotion of the practice of female genital mutilation”.

That wording is still there.

[Baroness Hamwee]

My Lords, I had gone straight to the text of it. Those words were in the text of the previous amendment and they have been changed. I am sorry if I have perhaps diverted the House in the wrong direction.

[Lord Dobbs]

I think the original wording is still there and therefore has some relevance.

On the previous group of amendments, the noble Baroness, Lady Smith of Basildon, called very sensibly for clarity. The challenge in this matter is not just the law but the practice itself. The figures that the noble Baroness, Lady Meacher, quoted are appalling: 100,000 victims in the UK; and 25,000 under the age of 15 at risk every year, perhaps even more. These figures are horrendous, but they are meaningless without prosecutions —that is, police and prosecuting authorities taking action. That is what is lacking. We have listened to them and they hope for prosecutions, but there has not been a single prosecution for female genital mutilation.

I looked at the figures for West Midlands Police. This is one of the areas where you would expect them to take a great deal of interest, but in 2011 they investigated eight cases. In 2012, that went up to 25, and in 2013 it was 41. They are getting better but very slowly. That speaks to the fact that this is a very difficult area for prosecution authorities. The noble Lord, Lord Lester of Herne Hill, spoke to that.

Given the current law and without a single perpetrator having been brought to justice, my fear is that this amendment with its vagueness would be counterproductive and make life more difficult for the prosecution authorities. My fear is that more law, no matter how well intentioned, that is too loose to be effective in practice—the practice is important—will create only more problems in enforcement rather than bring justice to those many innocent children. I applaud the intention of this amendment, but I caution about its outcome.

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[Baroness Howe of Idlicote (CB)]

My Lords, I support Amendment 46, which relates to the protection of children from sexual communication. As the noble Lord, Lord Harris, said, his amendment is supported by the NSPCC. It proposes a new offence so that it is always illegal for an adult intentionally to send a sexual message to a child.

In recent years children’s internet usage has grown exponentially. As your Lordships know, children between the ages of eight and 15 now spend far more time online than they do watching television. They are also keen users of social networks, with many engaging in risky online behaviour, including being in contact with people via social networks who are not directly known to them, sharing personal information, which makes them vulnerable to abuse, and sharing indecent pictures. We have heard about that from the noble Lord, Lord Harris.

Indeed some people behave in very different ways online to offline, apparently. Police interviews with sex offenders show that the majority differentiate the real world from cyberspace believing that their behaviour is acceptable because what is happening is not real or tangible. One offender said that masturbating on a webcam in front of a teenager seemed like “Fun at the time”. He stated that he would not behave that way offline. Consequently, young people are experiencing all sorts of abuse on a scale that we have never seen before. Last year, Childline, as the noble Lord, Lord Harris, said, had an amazing 168% increase in contacts from children relating to online sexual abuse.

The law needs to be changed better to protect children from adults who send these sorts of sexual messages to them. The noble Lord, Lord Harris, suggested that existing laws cover online grooming but the NSPCC and others who support this campaign do not believe that is true. The Sexual Offences Act 2003 was referred to. But, increasingly, abusers online have no intention to meet and abuse the individual child physically. Therefore, the Act apparently does not cover online grooming. There is a similar situation with the Malicious Communications Act 1988. Finally, if the Crown attempted to prosecute an offence under the Communications Act 2003, the defence could argue that the threshold of,

“a message … that is grossly offensive or of an indecent, obscene or menacing character”

had not been met. The Act also does not cover the use of private networks to communicate.

Current laws mean that police can be powerless to act until a child has been coerced into sharing an indecent image, lured to a meeting offline or, in the worst cases, sexually abused. The confusing nature of the law in this area means far more needs to be done to enable the police to take early action to prevent abuse escalating, reducing the risk to children and young people and helping them to keep safe online.

The amendment of the noble Lord, Lord Harris, seeks to close this gap in the law better to protect children online and would enable action to be taken against offenders at an earlier stage of the grooming process before an arrangement to meet had been made. It would help protect children from unwanted sexualised content online, potentially have a deterrent effect on offenders and put more responsibility on adults to ensure that who they are talking to online is indeed another adult. More than 75% of people believe it is already illegal for some aged over 18 to send a sexual message to a child under 16, while more than 80% of people have expressed support for such a change in the law. I very much hope that the Government will support the amendment of the noble Lord, Lord Harris.

[Baroness Hamwee]

My Lords, it always seems churlish to take up points in the text of an amendment when one supports the thrust of it but I am afraid I am going to. The action of grooming is hugely serious. On the noble Lord’s example, I wonder whether at least a part of that will be covered by the revenge porn amendment to the Criminal Justice and Courts Bill about the use of images, moved on Report. My noble friend Lady Grender, who put her name to it, arrived just after I had managed to find the text of that amendment. However, that is not my only point on this amendment.

The grooming which the noble Lord described often includes a lack of knowledge in either direction of the people taking part in e-mail exchanges. Therefore, I wonder whether it is appropriate to use the words, which I think have come from the 2003 Act, of A not reasonably believing that B is 16 or over, particularly as I suspect—I do not have detailed knowledge of this—that B, the child, may often claim to be older than she or he is. That is probably my major concern. There is also a reference to subsection (3) which sets out the circumstances in which no offence has been committed—but that only applies to paragraph (1)(d) where it must also apply to (1)(c), and it does not actually need stating in either case.

Perhaps I had better not go down the road of whether communications are written or oral—perhaps verbal is the word one should use there. More serious is the question of whether the list in proposed new subsection (4) is intended to be exhaustive. I would have thought not, but it reads that way. In proposed new subsection (4)(d) I query the reference to promotion of,

“emotional well-being by the giving of advice, and not for a sexual purpose”.

I am not sure whether those words correctly describe the difference between the sexual purpose of the perpetrator and the connection between emotional well-being, sexual advice and sexual well-being, which are inseparable.

Finally, might it not be better to go at this by trying to amend the Sexual Offences Act itself? That would lead to consequences, including the sex offenders register, to which the noble Lord quite rightly referred. Again, while I support the thrust of this, I am afraid that I could not support this particular amendment, which would take us in a direction that might be more difficult to untangle.

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[Baroness Howe of Idlicote]

My Lords, I rise briefly to speak in support of Amendment 47 of the noble Lord, Lord Harris. Some may take the view that internet service providers cannot be held responsible for information that people use them to hold. Although, in my view, ISPs certainly do not have responsibility for generating content, they do, however, play a very important role in facilitating it: first, in the sense that storage protects the material in question and thereby helps to guarantee its continued existence; and, secondly, in the sense of providing a basis from which the said material may be transmitted. In so doing, they have a responsibility actively to take all reasonable steps to ensure, on an ongoing basis, that they are not facilitating the storage and/or transmission of material of the kind set out in subsection (1) of the clause proposed in the amendment.

For myself, I would also like ISPs to have to demonstrate that these active steps have indeed been taken, and are being taken, on an ongoing basis. We must foster a legislative framework that exhibits zero tolerance of all aspects of child sex abuse images, including ISPs facilitating the storage and/or transmission of such images. I very much look forward to listening to what the Minister has to say in his response to this important amendment.

[Baroness Hamwee]

My Lords, I hate to disappoint the noble Lord, Lord Harris, but I fear that I am going to, as I simply have a question for him. I speak from a basis of almost no technological knowledge, but I would have thought that, presumably, all the services are open to abuse. Can I just ask what consultation there has been on this? The noble Lord talked about the responsible, innovative and exciting—if you are that way inclined—work being done by some of the ISPs. Like him, I have found the big players to be very responsible and wanting to be seen to be responsible. However, the proposed provision would obviously put an obligation on them. I would be interested to know how they have responded to it, if the noble Lord has had the opportunity to ascertain that.

[Baroness Smith of Basildon]

My Lords, I rise to speak briefly on this issue. During the Recess we had a meeting with Microsoft to discuss how it approached this matter. I was grateful for that because I probably share only one thing with the noble Baroness, Lady Hamwee, and that is that I have no technical knowledge or expertise and felt quite at a loss when looking at these issues. Microsoft officials gave us an understanding of the comments made by the noble Lord, Lord Harris, about the codes used to identify photographs and the hash code it used and they discussed whether it was an offence to store the coded photograph itself. Microsoft has developed its PhotoDNA technology that enables it to identify minor changes that abusers make in trying to slide past any checks and balances in the system, so it is carrying out impressive work to try to address this issue.

In listening to the presentation, I was particularly shocked by the sheer number of photographs and images, and the numbers of people involved, worldwide. At the beginning of his comments, the right relevant Prelate the Bishop of Derby, I think, referred to a recent case in Southend. That is close to where I live, so noble Lords can imagine that my local papers had a tremendous amount of coverage of that and I had commented on it. The case involved the head teacher of a local private school, who was interviewed by the police following the fact that his name came to light in an investigation carried out originally in Toronto. His name was passed to the UK, but it took far too long—well over a year—for him to be interviewed, following delays at CEOP and the police. When he was finally interviewed, he was found dead the following day. The amount of information that was found on his computer was staggering. Time will tell us the outcome of this as the investigations progress, but presumably that head teacher must have had links with people in other parts of the country and elsewhere in the world, and photographs may have been exchanged; certainly, he obtained photographs from others.

The scale of that activity is phenomenal and it is a tall order to expect the police to visit every single person involved in it. Having said that, I am critical of the fact that so few people, who we know have committed these abuse offences and have inappropriate images of children, have been visited by the police. I think that we could do far better in that regard and the delays are a cause for concern. However, we are talking about a massive number of people, so if technology is available that can block these photographs or allow the police to identify people more quickly, we should take every available opportunity to use it.

As I say, I was very impressed by the efforts being taken both by Microsoft, which briefed us, and by others to ensure that they can identify photographs, code them and pass on information. As I think the noble Baroness, Lady Hamwee, said, the amendment of the noble Lord, Lord Harris, does not place an obligation on internet service providers but allows them to take action. It basically says that they should consider the issue and, if there is a material risk, they should look at what they can do and take reasonable steps that might,

“mitigate, reduce, eliminate or other disrupt said behaviour”.

There are no sanctions or penalties for failing to do so, but it allows the internet service providers to take some action—action that we would want them to take and, I think, they would want to take.

The noble Lord, Lord Harris, has already said that he does not feel that he has a monopoly on being the world’s greatest drafter and is prepared to accept that there occasionally may be things that could be improved. He has, however, hit on something here. It is an issue to be addressed. I hope that the Government are having urgent meetings with the ISPs to see how they can work together on this. This amendment provides an opportunity to do so, and I would be interested to know what discussions the Government are having with internet service providers. It is an issue that we need to address. If we can deal with it at source and identify those who are responsible early on, it seems to me that would be a huge step forward in protecting children from this kind of abuse.

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[Lord Rosser]

My Lords, the purpose of our amendment, apart from giving an opportunity to debate the law relating to domestic abuse, is to provide for the Secretary of State to consult on ways of strengthening the law in relation to domestic abuse, which is perpetrated overwhelmingly against women, with that consultation taking place within six months of this Act coming into force. Our amendment also sets out some of the issues that the consultation would consider, without it being an exhaustive list.

Those issues are: should a specific offence or offences criminalising coercive and controlling behaviour, or a pattern or acts of behaviour within an intimate relationship, be created? Should the violent and sexual offenders register include serial stalkers and domestic violence perpetrators and be managed through the multiagency public protection arrangements? Should a new civil order be created to place positive obligations on serial stalkers and domestic violence perpetrators? Should the breach of domestic violence protection notices and orders be a criminal offence? Should domestic violence protection notices and orders extend across European boundaries?

One of the problems, as the noble Lord, Lord Wigley, said, is that the Government’s definition of domestic abuse, adopted from the general definition of the Association of Chief Police Officers, is not reflected in the law. The Government’s definition is:

“Any incident or pattern of incidents of controlling, coercive, threatening behaviour, violence or abuse between those aged 16 or over who are, or have been, intimate partners or family members, regardless of gender or sexuality”.

The abuse,

“can encompass, but is not limited to … psychological, physical, sexual, financial … emotional”.

However, the current law does not capture the Government’s non-statutory definition of domestic abuse as there is no statutory framework around it. Currently, offenders can be prosecuted only for acts of physical violence, when such violence is often the culmination of psychological and minor physical abuse which constitutes domestic abuse, which is outside the reach of the existing criminal law and does not get reported until it has actually escalated into physical violence—which, to put it mildly, is a bit late in the day.

The figures have already been quoted, but I shall repeat them. According to the Home Office, last year 7% of all women reported having experienced domestic abuse, which is equivalent to 1.2 million women a year. Two out of three incidents involved repeat offenders. The reality is that on average women do not report abuse until there have been at least 30 incidents. Since the age of 16, according to statistics published by Women’s Aid and the Home Office, almost one-third of women have experienced domestic abuse. Interestingly —although perhaps that is not the appropriate word—one in three women who attend an A&E department does so because she has been domestically abused.

As the noble Lord, Lord Wigley, said, according to Women’s Aid, only 6.5% of domestic violence incidents reported to the police lead to conviction and 25% of domestic violence cases that are passed on to the Crown Prosecution Service result in no action being taken. There is an issue around the successful prosecution of cases. In some cases, of course, the victim withdraws their statement to the police of domestic abuse or violence, does not come to court, or comes to court and gives evidence that is contrary to their original statement. However, bearing in mind that on average women do not report abuse until there have been at least 30 incidents, the strong likelihood is that any reluctance to go through the legal and court process is not because the domestic violence and abuse did not actually occur, but for other reasons.

An important reason for consultation, including on the specific points referred to in our amendment, is that following the introduction of specific domestic abuse laws in the United States, there was apparently a 50% rise in women reporting the behaviour, and with it a large increase in the number of perpetrators being brought to justice, along with a decrease of over one-third in incidents of abuse. One key area is the need to consult, as the Government have done, on criminalising abuse that involves coercive control in a domestic setting as well as making domestic abuse itself a separate criminal offence.

A further issue for consideration is whether the prosecution of domestic abuse and domestic violence cases should be subject to statutory time limits. Domestic abuse and violence has often gone on for some time before an incident is reported by the victim. Under the current arrangements, many earlier incidents that have occurred and which make up the totality of the abusive behaviour, cannot also be the subject of a prosecution along with the incident that finally led the victim to decide to report what had been happening.

Our amendment also calls for consultation to consider a new civil order which would be intended to prevent further contact that amounts to domestic violence, would prohibit the perpetrator from engaging in certain activities, perhaps including contact with the victim and the children of the victim, and would exclude the perpetrator from the victim’s home. Such a consultation could also consider whether a breach of this civil order should be a criminal offence and whether such notices and orders should extend across European boundaries, with offending histories and restrictions being shared.

The issues to which I have referred and those set out in the amendment providing for consultation are ones that outside organisations and experts in this field have advocated. The government consultation on coercive control has recently concluded. It would be helpful to know, first, what steps the Government intend to take following that consultation and, secondly, whether the issues referred to in my Amendment 49C and others to which I and other noble Lords have referred, are also either being considered by the Government or were part of the consultation that has just concluded. I hope that the Minister will be able to indicate in his response what issues or courses of action the Government are now considering following their consultation on strengthening the law on domestic abuse.

[Baroness Hamwee]

My Lords, I am in no doubt that there needs to be more effort, more prosecutions, more resources, better practice and better training in the area of domestic abuse. I find it difficult to comment on the amendment moved by the noble Lord, Lord Wigley, because it is essentially a trailer for provisions that we do not have before us, but the first steps must be about implementing the existing legislation in a consistent and robust fashion: prosecuting for physical and non-physical forms of abuse, both of which are possible. However, successful prosecutions are rare. I have mentioned training; there is a need for specialist training throughout the criminal justice system. The issue is hugely important to ensure, among other things, that the basics of violence in a domestic situation are properly understood.

The series of actions that constitute abuse are crimes now. Interestingly, the domestic violence charity with which I have the closest links, Refuge—I do not know whether I need to declare an interest in that I chaired it a while ago—commented in its response to the Government consultation that it is concerned that creating a separate domestic violence offence could in fact lead to it being treated less seriously and being downgraded. We know that the phrase, “It’s just a domestic”, is still hanging around. The charity points out that there is a risk that even physical offences may be downgraded, so I think that there is a debate to be had on that. It does not necessarily follow that badging what is a domestic crime would lead to it being regarded in a different way.

[Lord Wigley]

I have listened carefully to the noble Baroness. Does she accept that the potential crime of coercive control is not an offence at present? It was listed in the Government’s consultation, and that is one area in which progress could be made.

[Baroness Hamwee]

Indeed, and no doubt that is why the Government have consulted on it. I, too, am looking forward to hearing the results of the consultation, and I hope that if the responses indicate the need for legislation, there will be legislation. I am not saying that there should not be legislation to fill in any gaps, but that I am not convinced that a completely new approach is what is needed here.

Finally, because I am conscious of the time, I am aware that there is opposition in some quarters to relying on sentencing; in other words, regarding an offence as being domestic as an aggravating factor. If what is being considered in this debate is more serious sentences, we have to look at what sentences are available for the offences as they stand, so I would like to see a general debate about whether there is a sentencing element in this or whether it is about the offences in themselves.

[Baroness Stedman-Scott (Con)]

My Lords, I, like my noble friend Lord Dobbs, have not been involved in the conversations during this Bill, but I speak because of the importance of the issue and our debating it in full. I am very glad to be discussing whether domestic abuse, including psychological abuse, coercive control and a pattern of abuse should be seen in the eyes of the law as a serious crime. The impact of domestic violence on women and their children can be devastating and long lasting, yet its essence of power and control is not criminalised.

My noble friend will be aware of surveys which show the strength of support for change. The Victims’ Voice survey found that 98% of victims feel that reform of the law is needed. A survey of front-line domestic violence professionals found that 97% agree that coercive control should be recognised in law, with 96% agreeing that patterns of behaviour and psychological abuse should be recognised in law.

I welcome the Government’s consultation and appreciate that it will take time for my noble friend and colleagues to consider the 700 or so responses before deciding whether legislation would provide better protection to victims, but, like other noble Lords, I look forward to hearing the outcome of the consultation. Changing the definition of domestic abuse in March last year was obviously a very important step, but there is a clear need to create a culture where victims report much earlier, are believed when they do and the dynamics and patterns of abuse are recognised and understood. Will my noble friend also look at other countries which have successfully criminalised psychological abuse, coercive control and clear patterns of behaviour, because this could be the catalyst which will not just save money but save lives?

Serious Crime Bill [HL]

Baroness Hamwee Excerpts

Tuesday 14th October 2014 Lords Chamber

The Minister has started really well in his new position because he has already conceded on one of the points that we raised in Committee. I hope that he will look at this issue and accept our amendment. I am sorry that I have spoken for rather longer than I normally would. We propose the amendment in a cross-party spirit of wanting this legislation to succeed. If we are really going to tackle organised and serious crime, we can do so only if we are able effectively to seize the proceeds of crime.

[Baroness Hamwee (LD)]

My Lords, I, too, welcome my noble friend to his position. It must have come as quite a facer in the middle of his holiday to be told what a workload he was going to be coming back to.

Before I come to Amendment 4, I would like to say a word about part of the wording of Amendment 1 and indeed Amendment 14—and this point crops up elsewhere. I suspect that we are looking at a bit of modernised style, because we are told to have in mind the concept of the court “thinking”. There are a number of places now where the court “thinks”. We are quite used to words like “considers”. The Minister himself, in introducing the amendment, used the term “believes”, but one might “suppose”, “imagine” or “suspect”—one could go on for quite a long time.

I am a little concerned that we should be cautious about using modernised language without being very clear about what it means, particularly when similar concepts have been introduced in other legislation using different, and perhaps more “old-fashioned”, words. English is a rich language, and its richness covers a lot of subtleties. I just wanted to get that off my chest because I might come back to it on other legislation.

However, most of the debate so far—and we will hear more—is about the effectiveness of the restraint and confiscation regime. I share the outrage of other noble Lords about criminals salting away the proceeds of their crime. We used to discuss it quite a lot in the context of legal aid: that there were recipients of legal aid who were suspected of having a good deal of cash if only one could find it. Now, in the context of the Modern Slavery Bill, as the noble Baroness said, we could do better.

I hesitate to support the amendment going into legislation. The changes which it appears that we are all agreed should be made to the regime will barely have been in force before April 2015, which is the proposed end of the consultation period. Of course we should be assessing and evaluating the impact of the changes made by the Bill—in themselves, in the wider context and continually—to the confiscation regime. We should be prepared to make changes. Is it sensible to have a consultation running in parallel with the introduction of some alterations? Indeed, are we always talking about legislation that needs changing or about practice? I suspect that quite a lot of the problems are in the area of practice.

The noble Lord, Lord Taylor of Holbeach, explained in Committee that a couple of the proposals were, in the Government’s view, unnecessary; I do not want to anticipate what my noble friend will say. Indeed, as the noble Baroness reminded the House, on the recovery of costs, the noble Lord said that the Government would consider capping legal aid rates. However, without for a moment wishing to suggest that the concerns regarding the application of the Modern Slavery Bill are not important—they are immensely important—it seems that without the amendment there is nothing to preclude both consultation about the application of the provisions of that Bill and the bringing forward of more legislation. Conversely, consultation does not solve the issues which have been raised during the passage of the Modern Slavery Bill—which, like other noble Lords, I am very keen to see being effective.

[Baroness Butler-Sloss (CB)]

My Lords, the Proceeds of Crime Act has been inadequately applied. There is no doubt that it could be better dealt with. As far as they go, the Minister’s amendments are to be supported—but they by no means go far enough. As a member of the Joint Committee on the Modern Slavery Bill, I strongly support the speech of the noble Lord, Lord Warner. However, it goes further than that. The Modern Slavery Bill is an important part of getting the proceeds of crime, but all of us in this House want to see criminals dispossessed of their assets. The Proceeds of Crime Act and all of the amendments go further than the Modern Slavery Bill. We do need something.

I am not entirely certain, having listened to the noble Baroness, Lady Hamwee, that we need it in Amendment 4, but we certainly need either this amendment or a very strong undertaking from the Government that—side by side with implementing the government amendments to the Bill—they will consult. If there was a strong commitment to consultation before the Modern Slavery Bill comes in—bearing in mind that it is much broader than the Modern Slavery Bill—I would be content with that. However, if the Government are not going to give a strong commitment, I would find myself supporting Amendment 4.

--- Later in debate ---

[Baroness Williams of Trafford]

My Lords, as we noted in Committee, the tentacles of cybercrime can now stretch across the globe. A perpetrator, sitting in their bedroom in London, could be hacking into a computer anywhere in the world, or, located outside the UK, a British national could be causing serious damage to their host country or in our own. The new offence provided for in Clause 40 acknowledges this reality and captures the serious damage that cybercriminals can cause in any country.

Clause 40 goes on to define a reference to country as including a reference to: a territory; any place in, or part or region of, a country or territory; and the territorial sea adjacent to any country or territory. My noble friend Lady Hamwee moved an amendment in Committee to seek further clarity on the last of these three points, which gave rise to an interesting debate on how best to capture damage caused outside territorial waters.

Following that debate, we have given further consideration to the position of installations such as oil rigs, ships and so on that are located outside the territorial waters of any country. Although I acknowledge that this scenario is extremely unlikely, it is not clear that the offence as currently drafted would capture an attack that caused serious damage to the human welfare of those living and working on such an installation, or to the surrounding environment.

To provide greater clarity on this point, therefore, Amendment 17 replaces the reference to damage to human welfare in any country with a reference to damage to human welfare in any place. Amendment 18 similarly replaces the reference to damage to the environment in any country with a reference to damage to the environment of any place.

Once these changes are made, there is no longer any need to extend the meaning of “country” to include its territorial seas. References to damage to the economy or national security of any country will remain, as either the economy or national security of a country has been damaged or it has not. In these cases, it is not necessary to include territorial seas within the definition of a country, so Amendment 19 removes this reference. I am most grateful to my noble friend for raising this issue and I beg to move.

[Baroness Hamwee]

My Lords, I am grateful to both my noble friends on the Front Bench.

Amendment 17 agreed.

--- Later in debate ---

[Baroness Hamwee]

I welcome the Government’s response to this. My amendment seeks further clarity on the provision in Clause 44(8) which makes it,

“a defence … to prove that the person’s participation was necessary for a purpose related to the prevention or detection of crime”.

“Necessary” is narrow, which is right, but a,

“purpose related to the prevention or detection of crime”,

seems to me very wide. The example that came to mind at the previous stage was undercover policing, which is a contentious activity, although we heard from a report in the last day or two some good news on how it is conducted.

I am still puzzled about whether the phrase,

“participation … for a purpose related to”,

and not just,

“necessary for … the prevention or detection of crime”,

takes it beyond something that is acceptable. My amendment invites my noble friend to amplify the provision, if he is able to do so.

[Lord Bates]

I am grateful for the welcome that the amendment has received. I am mindful of the two questions, which I shall do my best to address. In response to the noble Baroness, Lady Smith, the Bill already provides for a defence when the,

“participation was necessary for a purpose related to the prevention or detection of crime”.

We considered that that, together with raising the threshold for the offence to “reasonably suspects” and a requirement for any prosecution to be in the public interest, provided that additional safeguard. We therefore concluded that the general defence of acting reasonably is unlikely in practice to add any additional protection from overcriminalisation of this offence. However, in the light of particular concerns expressed about the position of the regulated sector specifically, we looked again at the need for a bespoke defence for the regulated sector.

Two aspects of the Proceeds of Crime Act have been raised in this context. The first relates to the obligation that members of the regulated sector have to report money-laundering carried out by another. This aspect is addressed in Amendment 22, which would provide a partial defence that would apply to a member of a regulated sector who took part in activities that he did not know or suspect to be criminal activities as part of an organised crime group. We believe that the additional dimension is there and that it provides a further protection for those who are involved in financial services. I am sure that is why the Law Society, the Institute of Chartered Accountants in England and Wales and the Local Government Association have welcomed the amendment as far as it goes.

On the point raised by the noble Baroness, Lady Hamwee, I covered that in the previous answer to the noble Baroness, Lady Smith, but I will come back to her with more detail in writing if necessary. I beg to move.

--- Later in debate ---

[Baroness Williams of Trafford]

My Lords, we now turn to the amendments relating to Clause 65—no, we do not. I am sorry but I had what is completely the wrong speaking note and I apologise to your Lordships.

During debate in Committee, I agreed to consider further an amendment put forward by my noble friend Lady Hamwee to what was then Clause 56—it is now Clause 59. Where a substance suspected of being used as a drug-cutting agent has been seized and the court makes an order authorising the continued retention of the substance, Clause 59(7) requires the relevant police or customs officer to notify a person entitled to the substance of that fact, if they were not represented at the court hearing. My noble friend queried why such notice should not also be given to the person from whom the substance was seized, if different from the person entitled to the substance.

I am grateful to my noble friend for raising a pertinent point. On further consideration, we agreed that her suggested amendment would strengthen the provisions in the Bill by helping to minimise any impact on the legitimate trade. Amendment 35 to Clause 59 therefore extends the notice provision in that clause. A similar point also arises in relation to Clauses 56 and 61, which also require notice to be given to a person entitled to the seized substance. Amendments 33, 34 and 36 therefore make equivalent changes to these clauses, while Amendments 37 and 38 to Clause 64 make consequential amendments to the definition of “entitled”. Once again, I am grateful to my noble friend for raising the point and I beg to move.

[Baroness Hamwee]

My Lords, again, I give my thanks to my noble friend.

Amendment 33 agreed.

Communications Data and Interception

Baroness Hamwee Excerpts

Thursday 10th July 2014 Lords Chamber

[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

Tuesday 8th July 2014 Lords Chamber

Moved by

[Baroness Hamwee]

30A: Clause 35, page 28, line 5, at end insert “to the extent of the property or advantage obtained”

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[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.

Amendment 30A withdrawn.

--- Later in debate ---

I hope that I am pushing at an open door. I would be very grateful for clarification of the timetable for bringing forward this provision. I beg to move.

[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.

--- Later in debate ---

Moved by

[Baroness Hamwee]

31C: Clause 37, page 29, line 25, leave out “sea adjacent to” and insert “waters of”

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[Baroness Williams of Trafford]

Saved by the bell, my Lords.

[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.

Amendment 31C withdrawn.

--- Later in debate ---

Moved by

[Baroness Hamwee]

31D: Clause 39, page 30, line 11, leave out subsection (4)

[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.

[Baroness Williams of Trafford]

Yes.

[Baroness Hamwee]

Then I beg leave to withdraw the amendment.

Amendment 31D withdrawn.

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[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.

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Moved by

[Baroness Hamwee]

31L: Clause 41, page 32, line 13, after “group” insert “only”

[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.

--- Later in debate ---

I am confident that the participation offence will give law enforcement agencies a new and powerful tool to target those who oil the wheels of organised crime, and put relentless pressure on a greater proportion of the 5,300 organised crime groups operating in this country and, in doing so, identify those who help them. On that basis, I invite my noble friend to withdraw her Amendment 31L and urge the Committee to support Clause 41 in the knowledge that we will come back to these issues in the autumn.

[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.

Amendment 31L withdrawn.

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[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.

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Moved by

[Baroness Hamwee]

40A: After Clause 47, insert the following new Clause—
“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.

Amendment 40A withdrawn.

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Moved by

[Baroness Hamwee]

40B: Clause 56, page 42, line 15, at end insert “and (if different) the person from whom it was seized”

[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.

Amendment 40B withdrawn.