Lord Bates
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Serious Crime Bill [HL]
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“Exemption from civil liability for money-laundering disclosures
In section 338 of the Proceeds of Crime Act 2002 (money laundering: authorised disclosures), after subsection (4) insert—
“(4A) Where an authorised disclosure is made in good faith, no civil liability arises in respect of the disclosure on the part of the person by or on whose behalf it is made.””
“( ) An application to a sheriff for an order under section 59, 60, 62 or 63 must be made by summary application.”
The Parliamentary Under-Secretary of State, Home Office (Lord Bates)
My Lords, I shall also speak to Commons Amendments 24, 25, 35, 36 and 37. This first group of Commons amendments principally makes two further changes to the Proceeds of Crime Act 2002.
Part 7 of the Proceeds of Crime Act places obligations on the “regulated sector”, such as banks and accountants, to submit suspicious activity reports to the National Crime Agency, where the reporter has suspicions that a transaction might be linked to money-laundering or the financing of terrorism. This part of the Proceeds of Crime Act provides for a category of suspicious activity reports, called consent SARs. Where there are reasonable grounds to suspect that a transaction might be related to money-laundering, the reporter may seek the consent of the National Crime Agency to proceed with the transaction to avail themselves of some defence against a money-laundering charge. Some 14,000 consent SARs are submitted each year.
The National Crime Agency has seven working days to respond to a consent SAR. If consent is refused, the National Crime Agency has a further 31 calendar days to investigate the transaction. While the reporter awaits the NCA’s decision on consent, the activity or transaction must not proceed. The process can therefore unavoidably hold up the financial transaction in question. The consequences for a customer whose request or transaction is so delayed may go beyond mere inconvenience and lead to financial loss. A customer who has suffered such loss may seek to take legal action against a bank or other institution to recover any losses or otherwise to make a claim for damages. While the Government recognise the concerns of customers, we believe that where an institution has suspicions regarding the transaction and reports those to law enforcement authorities in good faith, as the law requires it to do, that institution should not be liable for civil claims for damages.
The UK is obliged, under Article 26 of the EU’s third anti money-laundering directive, to provide protection to those who report suspicions of money-laundering in good faith from incurring civil liability for doing so. The common law currently affords such protection through the Court of Appeal ruling in the case of Shah, which held that while customers can require institutions to prove that the suspicion that gave rise to the SAR was reasonable, provided the suspicion is so proved, the institution cannot be held liable for loss suffered by the customer as a consequence of the institution’s failure to carry out promptly the customer’s instructions.
We believe that placing this civil immunity on a statutory footing will provide for greater legal certainty. Commons Amendment 1 is directed to that end. That immunity from civil proceedings will apply only where a suspicious activity report is submitted in good faith, and those in the regulated sector responsible for submitting such reports will continue to be liable for any negligent or malicious conduct. We will work with the National Crime Agency and the Financial Conduct Authority to ensure that the change to the law does not lead to an abuse of the process. We believe that this amendment to the Proceeds of Crime Act will strengthen the partnerships we have built with the regulated sector and will increase the regulated sector’s trust and confidence in the SAR regime.
Commons Amendments 35 to 37 give effect to a recommendation made by the Joint Committee on Human Rights in its report on the Bill. The Commons amendments would in turn amend the Proceeds of Crime Act to give statutory force to the 2012 Supreme Court judgment in the case of Waya. The Supreme Court ruling and these amendments relate to the making of a confiscation order following a criminal conviction. If the prosecutor applies to the Crown Court for a confiscation order, the court has to consider making such an order—it has no discretion. In its consideration, the Crown Court sets a value for payment on the confiscation order at what is termed as the “recoverable amount”.
The Supreme Court ruled in the case of Waya that the duty on the Crown Court to make a confiscation order should be qualified so that it did not apply where such an order would be contrary to the defendant’s right to the peaceful enjoyment of his or her property, as enshrined in Article 1 of Protocol 1 to the European Convention on Human Rights. I stress that that does not mean that a confiscation order should not be made in such cases. The Supreme Court was saying that the amount for which a confiscation order is made must be proportionate in light of the circumstances of a case. It is possible that a court may decide not to make a confiscation order, but we believe that that would be highly unlikely. The Crown Court would most likely decide to set an amount to pay at less than the full recoverable amount.
The current situation is, of course, that the Crown Court is bound by the judgment of the Supreme Court as the superior court. The Crown Court should be, and is, already applying the findings in Waya to confiscation cases before it. However, we wish to make the obligation on the Crown Court explicit and ensure its consistent application. As I have said, that accords with the conclusion of the Joint Committee on Human Rights, which said that,
“the Bill provides an opportunity to bring greater legal certainty to the legal regime governing the proceeds of crime by inserting into the statutory framework express language which would give clear effect to the judgment of the Supreme Court in Waya”.
Commons Amendments 24 and 25 make consequential amendments to the commencement clause.
Finally, Commons Amendment 2 makes a technical change to Part 4 of the Bill, which provides for the seizure and forfeiture of substances used as drug-cutting agents. Clauses 59, 60, 62 and 63 provide for applications in respect of various matters—for example, the continued retention of suspected drug-cutting agents—to be made to the appropriate court. In Scotland, such applications will be made to the sheriff. Commons Amendment 2 provides that in Scotland those applications must be made by way of summary application, as distinct from other forms of application, such as an initial writ or small claim. I beg to move.
“Sexual communication with a child
After section 15 of the Sexual Offences Act 2003 insert—
“15A Sexual communication with a child
(1) A person aged 18 or over (A) commits an offence if—
(a) for the purpose of obtaining sexual gratification, A intentionally communicates with another person (B),
(b) the communication is sexual or is intended to encourage B to make (whether to A or to another) a communication that is sexual, and
(c) B is under 16 and A does not reasonably believe that B is 16 or over.
(2) For the purposes of this section, a communication is sexual if— (a) any part of it relates to sexual activity, or
(b) a reasonable person would, in all the circumstances but regardless of any person’s purpose, consider any part of the communication to be sexual;
and in paragraph (a) “sexual activity” means an activity that a reasonable person would, in all the circumstances but regardless of any person’s purpose, consider to be sexual.
(3) A person guilty of an offence under this section is liable—
(a) on summary conviction, to imprisonment for a term not exceeding 12 months or a fine or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years.””
“Child sexual exploitation
(1) The Sexual Offences Act 2003 is amended as set out in subsections (2) to (6). (2) For the heading before section 47 substitute “Sexual exploitation of children”.
(3) In section 48 (headed “Causing or inciting child prostitution or pornography”)—
(a) in the heading, for “child prostitution or pornography” substitute “sexual exploitation of a child”;
(b) in subsection (1)(a), for “to become a prostitute, or to be involved in pornography,” substitute “to be sexually exploited”.
(4) In section 49 (headed “Controlling a child prostitute or a child involved in pornography”)—
(a) in the heading, for “prostitute or a child involved in pornography” substitute “in relation to sexual exploitation”;
(b) in subsection (1)(a), for “prostitution or involvement in pornography” substitute “sexual exploitation”.
(5) In section 50 (headed “Arranging or facilitating child prostitution or pornography”)—
(a) in the heading, for “child prostitution or pornography” substitute
“sexual exploitation of a child”;
(b) in subsection (1)(a), for “prostitution or involvement in pornography” substitute “sexual exploitation”.
(6) In section 51 (interpretation of sections 48 to 50)— (a) omit subsection (1);
(b) for subsection (2) substitute—
“(2) For the purposes of sections 48 to 50, a person (B) is sexually exploited if—
(a) on at least one occasion and whether or not compelled to do so, B offers or provides sexual services to another person in return for payment or a promise of payment to B or a third person, or
(b) an indecent image of B is recorded;
and “sexual exploitation” is to be interpreted accordingly.”
(7) In section 1 of the Street Offences Act 1959 (loitering or soliciting for purposes of prostitution), in subsection (1), after “person” insert “aged 18 or over”.”
Lord Bates
My Lords, I shall also speak to Commons Amendments 13, 15, 19, 33, 38, 40 to 48 and 52. Commons Amendment 3 responds to an amendment tabled by the noble Lord, Lord Harris of Haringey, on Report and again at Third Reading. As the House will recall, the noble Lord and the NSPCC were concerned that there might be a gap in the law whereby an adult could communicate with a child for a sexual purpose without fear of prosecution. We responded by bringing forward a new offence to deal specifically with those concerns. I pay tribute to the work of the noble Lord, Lord Harris of Haringey, in working with the NSPCC to bring forward these changes, which we recognise as being important amendments to the Bill.
The new clause inserted by Commons Amendment 3 therefore creates a new offence which criminalises a person aged 18 or over who communicates with a child under 16, who the adult does not reasonably believe to be 16 or over, if the communication is sexual or if it is intended to elicit from the child a communication which is sexual. The offence will be committed whether or not the child communicates with the adult.
The offence will apply only where the defendant can be shown to have acted for the purposes of obtaining sexual gratification. Ordinary social or educational inter- actions between children and adults or communications between young people themselves will not be caught by the offence, and it is certainly not our intention to discourage the discussion of sexual matters in the context of such everyday relationships. The offence, which will apply equally online and offline, will be subject to a two-year maximum prison sentence. The new offence will extend to England and Wales.
Commons Amendments 15, 19, 41, 44 and 47 are consequential on Amendment 3. Importantly, Commons Amendment 43 provides that the new offence will automatically attract the notification requirements for registered sex offenders under the Sexual Offences Act 2003. The Police and the Crown Prosecution Service have welcomed the new offence and agree that it will help to ensure that young people are fully protected by the law and will allow the authorities to intervene earlier to prevent more serious forms of offending—for example, sexual grooming and contact offending—against children. The NSPCC has also strongly welcomed the new offence.
Commons Amendment 4 seeks to update the language used to describe child sexual exploitation offences in Sections 48 to 51 of the Sexual Offences Act 2003. In Committee in the Commons, Ann Coffey MP made a compelling case to remove from the statute book references to child prostitution and to limit the scope of the offence of loitering or soliciting for the purposes of prostitution so that it applies only to adults. Commons Amendment 4 gives effect to these changes.
This Government are clear that children who are sexually exploited, whether for financial gain or other reasons, should not be referred to as prostitutes and should be recognised as victims. The Government agree that such language is outdated and anachronistic. This Government believe that it is extremely important to convey the right messages about the treatment of children and young people who may be exploited or are at risk of exploitation. It is vital that any legislation relating to prostitution should recognise that children who have been subjected to sexual abuse or exploitation are, first and foremost, victims. They should not be stigmatised by legislation which treats them as perpetrators of crime or prostitutes.
This is also an opportunity to remove statutory references to child pornography where they exist and where, for similar reasons, children should always be seen as victims. Subsections (1) to (6) in Commons Amendment 4 make the necessary amendments to the 2003 Act. Commons Amendments 38, 42, 45 to 48 and 52 make the necessary consequential amendments to other enactments.
In addition to amendments to the Sexual Offences Act 2003, the Government are also of the view that we should, in the same spirit, amend Section 1 of the Street Offences Act 1959 so that the offence of loitering or soliciting for the purposes of prostitution would apply only to adults. This is the effect of subsection (7) in Commons Amendment 4 and the associated consequential Amendment 33. Unlike the amendments to the 2003 Act, an amendment to Section 1 of the 1959 Act would have a material impact in terms of criminality and enforcement. It would, in effect, decriminalise under-18s selling sex in the street. When considering this change it must be noted that, in practice, children and young persons under 18 are rarely arrested for loitering or soliciting. The Government consulted with the police on the impact of this amendment on their ability to protect children from sexual exploitation, and they welcomed the change. I am clear that this change is fully in keeping with the Government’s approach of treating children as victims, and preventing any suggestion that they may be complicit in their sexual abuse or exploitation.
I hope that the House will welcome the proposed changes in Commons Amendment 4. By introducing these changes we will make further strides in permanently shifting attitudes towards victims of child sexual abuse and exploitation. I commend these amendments to the House.
Lord Berkeley of Knighton (CB)
My Lords, I welcome the Government’s move in this direction whereby children are regarded as victims. We all know that a 14 year-old can be manipulative, but the important point about these amendments is that they put the onus on the adult not to transgress. In other words, they must make sure that they are not committing a crime and I am sure that this is what the Government wish to see. Putting the onus on to adults who get into correspondence with children is an extremely good move.
Lord Bates
My Lords, I am very grateful for the contributions made in this short debate, particularly those made by the noble Baroness, Lady Smith. She is right about what is happening here. In some ways, the language needs to catch up with the change in attitudes in society, as was said by the noble Baroness, Lady Howarth. We need to do that catching up, but the law also needs to catch up with the technology, as was pointed out by the noble Baroness. We talk about this applying equally online and offline, because sadly we know that more often than not the engagements of these communications have been in an online community, where the perpetrator is not visible. It is therefore absolutely right, as was said by the noble Lord, Lord Berkeley, that we should ensure that responsibility rests with the person who is making that initial contact.
The noble Baroness, Lady Smith, questioned the use of the term,
“offers or provides sexual services”,
in Commons Amendment 4. I have some sympathy with the comments she made, but in amending the Sexual Offences Act we sought to avoid changing the ambit of the relevant offences. The existing wording achieves this objective. I should stress that the wording,
“offers or provides sexual services”,
is used to define the term “sexually exploited” and should be read in that context. With those reassurances, and appreciative of that welcome, I beg to move.
“Controlling or coercive behaviour in an intimate or family relationship
(1) A person (A) commits an offence if—
(a) A repeatedly or continuously engages in behaviour towards another person (B) that is controlling or coercive,
(b) at the time of the behaviour, A and B are personally connected, (c) the behaviour has a serious effect on B, and
(d) A knows or ought to know that the behaviour will have a serious effect on B.
(2) A and B are “personally connected” if—
(a) A is in an intimate personal relationship with B, or
(b) A and B live together and—
(i) they are members of the same family, or
(ii) they have previously been in an intimate personal relationship with each other.
(3) But A does not commit an offence under this section if at the time of the behaviour in question—
(a) A has responsibility for B, for the purposes of Part 1 of the Children and Young Persons Act 1933 (see section 17 of that Act), and
(b) B is under 16.
(4) A’s behaviour has a “serious effect” on B if—
(a) it causes B to fear, on at least two occasions, that violence will be used against B, or
(b) it causes B serious alarm or distress which has a substantial adverse effect on B’s usual day-to-day activities.
(5) For the purposes of subsection (1)(d) A “ought to know” that which a reasonable person in possession of the same information would know.
(6) For the purposes of subsection (2)(b)(i) A and B are members of the same family if—
(a) they are, or have been, married to each other;
(b) they are, or have been, civil partners of each other; (c) they are relatives;
(d) they have agreed to marry one another (whether or not the agreement has been terminated);
(e) they have entered into a civil partnership agreement (whether or not the agreement has been terminated);
(f) they are both parents of the same child;
(g) they have, or have had, parental responsibility for the same child.
(7) In subsection (6)—
“civil partnership agreement” has the meaning given by section 73 of the Civil Partnership Act 2004;
“child” means a person under the age of 18 years;
“parental responsibility” has the same meaning as in the Children Act 1989;
“relative” has the meaning given by section 63(1) of the Family Law Act 1996.
(8) In proceedings for an offence under this section it is a defence for A to show that—
(a) in engaging in the behaviour in question, A believed that he or she was acting in B’s best interests, and
(b) the behaviour was in all the circumstances reasonable.
(9) A is to be taken to have shown the facts mentioned in subsection (8) if— (a) sufficient evidence of the facts is adduced to raise an issue with respect to them, and
(b) the contrary is not proved beyond reasonable doubt.
(10) The defence in subsection (8) is not available to A in relation to behaviour that causes B to fear that violence will be used against B.
(11) A person guilty of an offence under this section is liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both;
(b) on summary conviction, to imprisonment for a term not exceeding 12 months, or a fine, or both.”
“Guidance
(1) The Secretary of State may issue guidance about the investigation of offences under section (Controlling or coercive behaviour in an intimate or family relationship) to whatever persons the Secretary of State considers appropriate.
(2) The Secretary of State may revise any guidance issued under this section. (3) The Secretary of State must arrange for any guidance issued or revised under this section to be published.”
Lord Bates
My Lords, I shall speak also to Commons Amendments 17 and 21.
We can all agree that domestic abuse is a serious and pervasive crime; a point well made by the noble Lord, Lord Wigley, on Report. It is shocking that in the past year more than 2 million people in England and Wales were abused by those closest to them, and even more shocking that 85 women were murdered by a current or former partner.
However, comparing those figures to the number of people who reach out for help and access the criminal justice system shows that, despite prosecution and conviction figures reaching their highest ever levels under this Government, domestic abuse is still vastly underreported. A stark comparison of crime survey and Crown Prosecution Service figures suggests that just one in 20 of those abused by their families and partners have access to justice.
The sad fact is that we are still grappling with a reality where many people think a crime has been committed in a relationship only if violence is involved. Even the courts have taken the view that stalking and harassment legislation does not apply in ongoing relationships where abuse is interspersed with periods of affection. That rules out those cases of domestic abuse where controlling and manipulative perpetrators play on the affection of their partners or family members to avoid detection.
The Government understand that coercive and controlling behaviour can be harder to recognise, but can be every bit as damaging to its victims as physical violence. To quote one victim of domestic abuse who responded to our consultation,
“my bruises faded, but the psychological scars didn’t”.
In recognition of the harm that coercive and controlling behaviour can do, the Government have expanded the non-statutory definition of domestic violence and abuse to send a clear message that abuse is more than just physical. Last summer, we ran a consultation to ask whether the law also needs to be strengthened to provide better protection to victims of domestic abuse. Eighty-five per cent of respondents told us that the law needs to be strengthened; 55% highlighted the need for a new offence to make sure that a person causing someone they are in a relationship with to live in constant fear faces justice for their actions.
Commons Amendment 7 provides for just such an offence. The new offence makes it clear that abusing someone in a relationship is every bit as serious as stalking or harassing a stranger. It applies to repeated or continuous behaviour in relationships which, when incidents are viewed in isolation, may appear unexceptional, but has a significant cumulative impact on the victim’s everyday life. It causes them to feel fear, alarm or distress.
When I first spoke on this issue in the House last year, I said that legislation on this issue must be approached judiciously. I stand by that. There is a balance to be struck. Every relationship has its own power dynamics and this is not about outlawing arguments or saying that couples cannot disagree. It must be clear that the new offence does not apply to volatile relationships which stop short of being abusive. To capture this balance, key elements of the new offence are the need to establish the repeated or continuous nature of the behaviour and the ability of a reasonable person, whether part of or external to the relationship, to appreciate that the behaviour will have a serious effect on its victim.
We have made sure that the new offence does not duplicate existing criminal law. Child abuse does not fall into the ambit of the new offence because it is covered by existing offences. Nor does the new offence apply to extended family members who have never lived with the victim, because stalking legislation would capture those circumstances.
We must also be on our guard against the application of the new offence in circumstances where control may be necessary to secure a loved one’s safety. For example, I am sure that none of us would want to see the spouse of a person struck by mental illness imprisoned for medicating them or protecting them from situations which may cause them harm. I am equally sure that we would not want to see the parents of an unruly teenager convicted for proportionately curbing the behaviour of their wayward child. That is why we have included a defence in the framework.
Of course, we also need to be sure that manipulative perpetrators cannot use the defence to escape justice. To address this, the defence will not be available where the victim has been caused to fear violence. To rely on the defence, a defendant will need to show that a reasonable person would agree that their behaviour was reasonable in all the circumstances. This is not an easy test to meet if you have perpetrated a campaign of control against another person.
The maximum sentence of five years’ imprisonment for the new offence recognises the damage that coercive or controlling behaviour can do to its victims and is commensurate with the maximum penalty for stalking. Of course, the new offence cannot be implemented without an effective police response, so the work that the Home Secretary is doing to drive improvements through her national oversight group on domestic abuse remains as high a priority as ever.
The new offence, together with the guidance for investigators provided for in Commons Amendment 8, will make it easier for the police to protect victims and bring those who abuse them to justice. This will send a clear message that domestic abuse in all its forms will not be tolerated in our society. Commons Amendments 17 and 21 are consequential on Amendments 7 and 8. I beg to move.
Baroness Smith of Basildon
My Lords, I welcome these amendments. As a long-term patron of Basildon Women’s Aid, for over 20 years, I am very much aware that coercive and intimidating behaviour is often a precursor to violent behaviour. I have spoken to women and found that it can start with, “Oh, I like to see you in that dress”. In one case, it went from what somebody wore and whether they wore make-up through to, if they even washed, they were seen as trying to attract other men, and that then led to violence. It can start very simply with what somebody wears or make-up and end in violent behaviour.
Not only does the amendment recognise that controlling or coercive behaviour in such relationships is dangerous, it could also be a preventive measure, because it could nip the problem in the bud before it gets to violent and more abusive behaviour. The amendment recognises how dangerous such controlling behaviour is. Even if it does not lead to violent behaviour, controlling behaviour is dangerous and corrosive to the individual. That is recognised in the courts already. Ongoing, day-in, day-out controlling behaviour has led to cases where the woman being victimised has turned on and been violent towards the perpetrator of such behaviour. The courts have now recognised that slow-burn behaviour. Intimidation has consequences, so the amendment is very welcome.
The Minister talked about the effective police response. Passing a law does not, on its own, make something happen, and he recognised that. In my area, the number of police officers and the pressure that they are under has an impact on the police’s ability to investigate and act on such issues. Too often, domestic violence can, as the noble Lord and the Home Secretary have recognised, come further down the list of priorities. I hope that, when the Government examine how successful this is, they also look at the resources that are available for the police to take the action that is needed.
Lord Bates
My Lords, I am grateful to the noble Baroness for welcoming the amendment and for her additional emphasis on the point that this could be seen as a preventive measure. That is absolutely right and I hope that that will be the case.
On the noble Baroness’s specific point, the Home Secretary has not shied away from the fact that the police need to do more. That is why she has launched the review by Her Majesty’s Inspectorate of Constabulary on the police response to domestic abuse. That report identified that police practice in using the current law is inadequate. The chief inspector also highlighted failures in leadership that mean that strategic priorities are not being realised in front-line policing and there is a front-line culture in which domestic abuse is often not regarded as a serious crime. The Government are clear that this is not good enough. Lasting, meaningful improvement must happen now; and to make sure that change happens, the Home Secretary has established and is chairing the new national oversight group. This work is the Government’s main priority on domestic abuse and will lead directly to better protection of victims. However, in addition to important operational improvements, the new offence will strengthen the protection available to victims trapped in cycles of abuse and help front-line agencies provide a better response to this serious crime. I appreciate the cross-party support on this issue.
“Throwing articles into prisons
After section 40CA of the Prison Act 1952 (inserted by section 71 above) insert—
“40CB Throwing articles into prison
(1) A person who, without authorisation, throws any article or substance into a prison is guilty of an offence.
(2) For the purposes of subsection (1)—
(a) the reference to an article or substance does not include a reference to a List A article, a List B article or a List C article (as defined by section 40A);
(b) the reference to “throwing” an article or substance into a prison includes a reference to doing anything from outside the prison that results in the article or substance being projected or conveyed over or through a boundary of the prison so as to land inside the prison.
(3) In proceedings for an offence under this section it is a defence for the accused to show that—
(a) he reasonably believed that he had authorisation to do the act in respect of which the proceedings are brought, or
(b) in all the circumstances there was an overriding public interest which justified the doing of that act.
(4) A person guilty of an offence under subsection (1) is liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine (or both);
(b) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine (or both).
(5) In this section “authorisation” means authorisation given for the purposes of this section; and subsections (1) to (3) of section 40E apply in relation to authorisations so given as they apply to authorisations given for the purposes of section 40D.””
“Prevention or restriction of use of communication devices by prisoners etc
(1) Regulations may make provision conferring power on a court to make a telecommunications restriction order.
(2) “Telecommunications restriction order” means an order requiring a communications provider to take whatever action the order specifies for the purpose of preventing or restricting the use of communication devices by persons detained in custodial institutions.
(3) Regulations under this section must—
(a) specify who may apply for telecommunications restriction orders;
(b) make provision about giving notice of applications;
(c) make provision conferring rights on persons to make representations;
(d) specify the matters about which the court must be satisfied if it is to make an order;
(e) make provision about the duration of orders (which may include provision for orders of indefinite duration);
(f) make provision about variation (including extension) and discharge of orders;
(g) make provision about appeals.
(4) Regulations under this section may—
(a) make provision for a telecommunications restriction order to specify that a requirement of the order is not to apply in particular circumstances;
(b) make provision authorising a court to include in an order a requirement for the person applying for the order to pay any or all of the costs of complying with it;
(c) make provision about time limits for complying with orders;
(d) make provision about enforcement of orders (which may include provision creating offences);
(e) make provision about costs (or, in Scotland, expenses) in respect of legal proceedings;
(f) make different provision for different purposes;
(g) make incidental, consequential, supplementary or transitional provision, including provision applying any enactment (with or without modifications).
(5) The power to make regulations under this section is exercisable—
(a) in relation to England and Wales, by statutory instrument made by the Secretary of State;
(b) in relation to Scotland, by the Scottish Ministers.
(6) A statutory instrument (other than a Scottish statutory instrument) containing regulations under this section is not to be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.
(7) Regulations made by the Scottish Ministers under this section are subject to the affirmative procedure.
(8) In this section—
“communication device” means an item specified in section 1(3) of the Prisons (Interference with Wireless Telegraphy) Act 2012 (mobile telephones etc);
“communications provider” means a person providing a service that consists in the provision of access to, and of facilities for making use of, any telecommunication system (whether or not one provided by that person);
“court” means—
(a) in relation to England and Wales, the county court;
(b) in relation to Scotland, the sheriff;
“custodial institution” means—
(a) in relation to England and Wales, a prison, young offender institution, secure training centre or secure college;
(b) in relation to Scotland, a prison or young offenders institution;
“enactment” includes—
(a) an enactment contained in subordinate legislation within the meaning of the Interpretation Act 1978;
(b) an enactment contained in, or in an instrument made under, an Act of the Scottish Parliament;
“telecommunication system” means any system (including the apparatus comprised in it) that exists (whether wholly or partly in the United Kingdom or elsewhere) for the purpose of facilitating the transmission of communications by any means involving the use of electrical or electro-magnetic energy.”
Lord Bates
My Lords, I shall speak also to Amendments 16, 22, 23 and 28. Control and order is a fundamental foundation of prison life. Without it, safety cannot be guaranteed and the rehabilitation of prisoners cannot take place. It is known that the throwing of packages containing contraband, including psychoactive substances—often inappropriately referred to as “legal highs”—is a key method of supplying drugs into prisons. In some cases, it is co-ordinated by criminal gangs involved in a wide range of criminality. The presence of new psychoactive substances in prisons, now drugs of choice among many prisoners, is a significant and growing problem that we must address urgently. These drugs are having an increasingly destructive impact on prison security, order and the welfare of individual prisoners, with increasing evidence of links to mental health problems and violent behaviour.
While it is currently a criminal offence under the Prison Act to convey a number of items including controlled drugs into a prison, non-controlled substances are not covered by that legislation. As such, those caught trafficking a range of new psychoactive substances have been able to evade justice. This is not acceptable.
Commons Amendment 9 will create a new offence of throwing or otherwise projecting any article or substance into a prison without authorisation. The clause will criminalise the trafficking of new psychoactive substances into our prisons and also captures the throwing of other articles into prison that could pose a threat to prison staff and prisoners. We must not tolerate those who damage prison health and order by throwing items such as new psychoactive substances into prisons. This new offence will help to stop this harmful practice.
Commons Amendment 10 seeks to prevent the unauthorised use of mobile phones in prison. The unauthorised use of mobile phones presents serious risks to prison security. They have been used to plan escapes and support the commission of serious crimes by organised criminals. In January, we saw the sobering reports of the conviction of a prisoner in Wandsworth prison who had used his mobile phone to arrange the importation of machine guns into this country from Germany. I am sure that we all agree that such use of mobile phones in prison is completely unacceptable.
The National Offender Management Service uses a range of techniques to detect and seize phones in prisons. However, despite the success of these methods, as mobile phone technology advances and the size of handsets decreases, it is becoming easier for prisoners to conceal illicit phones in prison. Disconnecting phones would be a cost-effective and future-proofed method to prevent the unauthorised use of phones in prison. Mobile network operators have asked for a clear legal framework to support disconnection. Amendment 10 will therefore enable the Secretary of State—or, in Scotland, Scottish Ministers—to make regulations conferring a power on the civil court to make a telecommunications restriction order. Such an order will require a mobile network operator to disconnect those SIM cards and handsets that are found to be in use in prisons without authorisation, effectively putting those devices beyond normal operational use.
In the unlikely event that a genuine customer’s phone is disconnected in error, NOMS will advise the mobile network operator that the telecommunications restriction order no longer applies. This will allow the network operator to expedite the reconnection of the service. This will be done quickly, without the need to return to court to vary the order. The customer’s phone can still be used to call the emergency services, should that need arise. As an additional safeguard, NOMS will report annually to the Interception of Communications Commissioner, providing the details and frequency of any erroneous disconnections for scrutiny by the commissioner’s office.
It is unacceptable that prisoners should continue to use mobile phones to carry out criminal activity outside prison. Having the power to disconnect illicit phones in prison will help to tackle that flagrant disregard for the restraints of their incarceration. Our view is simple: we must constantly seek ways to improve prison security. These new offences will do exactly that. The other amendments in this group are consequential on these two new clauses. I commend these amendments to the House.
Lord Harris of Haringey (Lab)
My Lords, this is pure curiosity on my part but, in relation to Amendment 10, might I understand how it would be possible to tell the communications providers that they should apply a telecommunications restriction order to a specific SIM card unless said SIM card had already been seized and obtained by the prison authorities—in which case, why would it be needed? Also, what steps have been taken to look at technological systems that would jam the signals inside prisons?
Lord Bates
Those are very reasonable points to make. On general jamming in the prison compound, I recognise of course that some individuals working within that compound need to have mobile devices, which can be used to communicate. By that, I am referring to the staff prison officers.
On the specific issue of SIM cards, the National Offender Management Service currently uses a range of different techniques to detect and seize phones already in prisons, including the use of detection technology and regular cell and prisoner searches. However, despite the success of these approaches, as mobile phone technology advances and the size of handsets decreases it is becoming easier for prisoners to conceal illicit phones and move them around the prison estate. It is for the Crown Prosecution Service to decide whether to prosecute an individual for possessing a mobile phone in custody. Due to the way in which mobile phones are typically used in prisons, with multiple prisoners potentially sharing one phone, it is often not possible to attribute handsets and SIMS to specific individuals.
In many ways, I agree with the noble Lord that identifying the number on the SIM card is tremendously difficult when you are still searching for the device. However, in the light of experience, we are simply trying to make it as difficult as possible for the individuals concerned to do this. NOMS uses a range of measures to stop phones and SIM cards getting into prisons. However, due to the high number of deliveries, post items and individuals entering and leaving prisons each day, it is impossible entirely to prevent SIMs and handsets making their way on to the prison estate.
Those are the points that I have, which I hope have been some help. There might just be some communications data on their way to help me. The signal of an unauthorised phone or SIM card can be detected without physically seizing the phone SIM in question. Blocking has a role but can be expensive to use. The answer is therefore probably quite straightforward—it is now, anyway. Through the detection devices we can identify a SIM, even if we have not managed to locate it, and block it in the process. I hope that with that general reassurance, the House will accept these amendments.
“Codes of practice about investigatory powers: journalistic sources
In section 71 of the Regulation of Investigatory Powers Act 2000 (issue and revision of codes of practice), after subsection (2) insert—
“(2A) A code of practice under subsection (1) that relates (expressly or otherwise) to the exercise and performance, in connection with the prevention or detection of serious crime, of powers and duties conferred or imposed by or under Part 1 of this Act—
(a) shall include provision designed to protect the public interest in the confidentiality of journalistic sources;
(b) shall not be issued unless the Secretary of State has first consulted the Interception of Communications Commissioner and considered any relevant report made to the Prime Minister under section 58.””
Lord Bates
My Lords, I shall speak also to Commons Amendments 14, 30 and 34. I will first deal with the Commons amendments.
Commons Amendment 11 relates to the use of powers under Part 1 of the Regulation of Investigatory Powers Act—RIPA—to identify journalistic sources. The House will recall that this important issue was raised by my noble friend Lord Strasburger on Report in October. I hope I speak for the whole House when I say that a free press is fundamental to our democracy and nothing should be done which might endanger that.
When the issue was before us previously, I said that it would be premature to take action in advance of knowing the findings of a report into the issue by the independent Interception of Communications Commissioner. We now know the commissioner’s findings and the Government immediately accepted in full the recommendations contained in his report when it was published last month. Those included that there should be judicial authorisation of requests for communications data which are intended to determine the source of journalistic information. While the commissioner did not find widespread or systematic abuse, and found that the number of cases where police forces had sought to obtain communications data for the purpose of determining journalistic sources were few, he found that a lack of sufficient care and attention in some applications, including in the consideration of the implications for freedom of expression, was such that we needed to act.
We have not been able to bring forward in the Bill the legislative changes required to give full effect to the commissioner’s recommendation relating to judicial authorisation, given that the scope of the Bill is limited to serious crime. However, I trust that Commons Amendment 11 will make it clear that we will address the underlying principle as far as possible when we can. It provides that any code of practice issued under RIPA that deals with the use of the investigatory powers under Part 1 of that Act in relation to the prevention or detection of serious crime shall include provisions which protect the public interest in the confidentiality of journalistic sources. It also requires the Secretary of State to consult the Interception of Communications Commissioner and to have regard to any relevant reports that he has made.
Noble Lords will also be aware that we intend to lay very shortly for parliamentary approval the draft acquisition of communications data code of practice. That follows a public consultation on the draft code and addresses both the responses to that consultation and the Interception of Communications Commissioner’s recent report. The code, when approved, will require law enforcement to use production orders, which are judicially authorised, under the Police and Criminal Evidence Act 1984—or the equivalents in Scotland and Northern Ireland—for applications for communications data to determine journalistic sources.
Nevertheless, it is clear that a long-term solution will have to wait until after the election. However, to be clear about our intent, the Government published last week a draft clause that will give full effect to the commissioner’s recommendation on judicial authorisation for applications to determine the source of journalistic information. Legislation will be required in the next Parliament in the field of investigatory powers to give effect to the recommendations of David Anderson QC, the Independent Reviewer of Terrorism Legislation, which will give Parliament the opportunity to put into law the full recommendation of the independent commissioner. I hope that the Government’s approach provides reassurance to your Lordships that the Government take very seriously the issue of the protection of a free press and free expression.
I hope that Commons Amendment 11, in combination with the other measures I have outlined, including a requirement to use the judicially authorised production order route and a commitment to future legislation, will assure your Lordships of the Government’s intent in this area. I reiterate that the Government are committed to giving full effect to the recommendations made by the Interception of Communications Commissioner. We are doing as much as we can in the Bill, given the limitations of its scope, and will return to this issue in the next Parliament. I recognise that my noble friend Lord Strasburger would like the Bill to go further. I look forward to hearing what he has to say about his Amendment 11A and I will respond to that when winding up. In the mean time, I invite your Lordships to agree with the Commons amendments.
Lord Strasburger (LD)
My Lords, when this Bill was last debated in another place, the Home Office rejected a new clause tabled by Julian Huppert and backed by cross-party Back-Benchers that was very similar to this Amendment 11 but had a number of key differences. My amendment seeks to probe the justification, if there is any, for the Government’s omission of those provisions.
The first of these relates to the protection that is due to other privileged material, as it is rightly intended to be provided for journalistic material. This is what might be called medical privilege, religious or spiritual privilege and elected representative privilege. When an individual makes contact with a doctor, priest or MP, they are entitled to a higher level of confidentiality than applies to other matters. Therefore, just as journalistic material should be subject to a process involving judicial authorisation before communications data are accessed by the police, so should this sort of communications data.
The justification for providing protection in respect of journalistic material in RIPA, provided by the Government when they eventually agreed, was that it was necessary to protect whistleblowers who could be identified by the police accessing the communications data of journalists. Surely the same applies in respect of the communications data of Members of Parliament, and their equivalent in the European Parliament, the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly. Why are the Government in their new clause providing only that the code of practice should protect whistleblowers’ identity when they go to the press and not when they go to their MP to reveal serious wrongdoing?
The second justification given by the Government for judicial authorisation before the police could access journalists’ communications data was that there was confidential information inherent in the “metadata” that would be obtained; namely, that someone identifiable had contacted a journalist. Exactly the same applies in respect of communications data relating to medical practitioners. The fact that a certain person has been in communication with a healthcare professional with a specific specialty in itself reveals confidential information. Obvious examples are mental health care professionals, STD clinics, obstetricians and so forth. The Home Office has provided no justification for failing to provide protection for such data, nor indeed has it provided for safeguards to be written into the code of practice, which the amendments before us deal with. This is even more peculiar when one sees that the Government’s proposed change to the code of practice, which was all they were offering before the IOCCO’s report was published, makes specific reference to the types of privilege—medical, spiritual and Member of Parliament—which my amendment would require a code of practice to deal with. It is not good enough for the Home Office to say that it wants to go no further than the recommendations in the IOCCO’s report because that report in several places made reference to the equivalent public interest that attaches to the confidentiality in these areas.
The second matter that my amendment deals with is the question of notice for journalists of an application to a judge when their confidential sources’ identities may be revealed. Under PACE, when the journalist holds the confidential material—called “excluded material” under PACE—the default position is that the journalist is given notice; that is, that the application is heard by the court inter partes. When it comes to RIPA and communications data, the person who holds the material will in general be a telecoms company or an ISP. They are not going to be in a position, of course, to contest any application. They have no significant interest in protecting the confidentiality of any of the information they provide to the police, providing that the police are acting within the law. It is only the journalist who can and should, if circumstances permit, assist the court in identifying the degree of public interest in identifying any of his or her sources.
By analogy with the provisions in PACE, it seems only right that there should be provision in the new legislation that the Government have promised after the election to provide for judicial authorisation for journalists to be given notice of the application. No doubt it will be appropriate also to provide that that notice does not have to be given when there is a risk that such notice might significantly prejudice a criminal investigation because, for example, the journalist, himself or herself, is a suspect, or, if given notice, could destroy evidence, or because the journalist might tip off a contact who was a suspect in a criminal investigation that might lead to the suspect destroying evidence or absconding.
That is why my amendment seeks to require that the code of practice makes provisions for the circumstances in which the journalist could and should be notified of an application to access communications data that is likely to lead to the identification of a confidential source. It should make no difference to the question of whether, without prejudice to an investigation, a journalist can have the opportunity to make his or her case to the judge when the data in question are held by a third party telecoms company.
The courts have found it extremely useful to hear representations from the media about non-broadcast footage when the police had applied under PACE for the release of that material. The protection of whistleblowers requires that the only people who can speak up for them in court before they are identified under this legislation are given notice of the application, subject to not prejudicing the investigation. This is a concern for my party and the National Union of Journalists.
Before I finish, I should like to raise a number of questions to the Minister on this area. After Julian Huppert tabled his new clause, which would provide for judicial oversight in RIPA for applications relating to journalistic sources, the Government agreed to make a temporary arrangement that the police would be directed to use PACE when such circumstances arose, and that this would be achieved by a change to the code of practice. My first question is: when will the Government bring forward the proposed code of practice, because time is short before Parliament prorogues? Secondly, will my noble friend and officials meet urgently with me and the National Union of Journalists to discuss the form of that code of practice? Thirdly, is it intended that the code of practice will, as I have indicated by this amendment, set out the circumstances in which journalists can be given notice of an application under Schedule 1 of PACE, even though the existing PACE provisions do not provide that they be given notice because they are not holders of the data or material? Fourthly, will the Home Office take the opportunity in this code of practice to make it clear that the police should use PACE procedures for other forms of privilege before obtaining communications data relating to the other forms of privilege that I have set out, as well as to communications data that might reveal contact between a lawyer and his or her client? As I explained, the Government’s previously proposed change to the code of practice did specify that consideration needs to be given to these other forms of privilege on the same basis as that given to journalistic privilege.
The Government, in response to Mr Huppert’s proposed new clauses, also published draft clauses that they said would be included in any update of RIPA legislation following the report of the Anderson review, early in the next Parliament. Those draft clauses were made available to Members of the other place only about an hour before the debate on Mr Huppert’s new clause. It therefore seems appropriate to use this opportunity to ask the Government to explain some of their provisions before this legislation goes through, given that Members of the other place were not given that opportunity before deciding not to press Mr Huppert’s new clause.
My first question is why there is a provision in the draft clauses to bypass judicial authorisation for RIPA requests for telecoms data in the circumstances of “imminent threat to life”, when such provision does not exist in PACE. Why is the threshold used by the Government to decide when the journalistic privilege requirement to put the application before a judge is triggered higher in their draft clauses than in PACE? The draft clause states that the requirement for judicial authorisation is triggered when the purpose in whole or in part is to identify a journalist’s sources, whereas in PACE the threshold or test, much more appropriately, is that the application is likely to reveal the source. As I have explained, I believe there should be circumstances in which a journalist should be notified of an application to access their communications data, and that this should be included in the new legislation.
The Government’s draft clause, unlike PACE, does not even provide for notice to be given to those who hold the data. Will the Government explain this or reconsider it? The Government’s draft clauses do not contain the same provision as in PACE for it to be an offence to destroy material sought under an order granted by a judge. Will the Minister please explain this? Finally, will the Minister explain why in the draft clause there is no provision for the judge making the decision to have regard to the public interest in maintaining the confidentiality of journalistic sources? This was proposed by the amendment in the other place. I beg to move.
Lord Bates
My Lords, in responding to my noble friend Lord Strasburger, I pay tribute to him for the way he has engaged with this issue. We have had some conversations about this, and I know that this is a subject he feels very passionately about. He also brings a great deal of expertise to the role, and a knowledge of how communications actually work.
The special case being made for journalists here is the fact that not only did the Interception of Communications Commissioner confine his particular examination in his report to looking at journalists, but someone who speaks to, say, a lawyer does not reveal what was said. If someone is trying to establish the source of a leak, knowing who spoke to a journalist may be more important than actually knowing what was said. This does not extend in the same way to other professions. That is what we are trying to say. It is a different way of looking at the particular situations in which journalists find themselves. I also say to my noble friend that we will very shortly lay before Parliament for approval the draft acquisition of communications data code of practice, following the public consultation. That will provide another opportunity to look at this.
My noble friend asked some specific questions about when the Government will bring forward the proposed code of practice. As the Minister for Modern Slavery and Organised Crime made clear in the House of Commons last week, the Government hope that the code of practice will be in place as soon as possible, but obviously this will be subject to parliamentary approval. My noble friend asked whether the Minister and officials will urgently meet with him and the National Union of Journalists to discuss that code of practice. Officials have already met with the National Union of Journalists early in the process. The NUJ has also responded to the consultation, and we have considered their response. Following the consultation, we have implemented significant changes in the code, as I have stated, and will publish it shortly. However, I am of course very happy to meet my noble friend and any others from the NUJ whom he wishes to bring with him.
It was also asked whether the code of practice will set out the circumstances in which journalists can be given notice of an application under Schedule 1 of PACE. My honourable friend Karen Bradley addressed the issue of providing notice in the House of Commons when considering these amendments in another place last Monday. It has never been the practice in this country that those who are subject to a communications data application are notified. There are obvious reasons for that, given that the crime may be under active investigation. We do not intend to depart from that, but we are of course very happy to listen to concerns.
Lord Bates
That that this House do agree with the Commons in their Amendments 13 to 17.
“( ) Subsection (7) of section (Child sexual exploitation) and paragraph 1A of Schedule 4 do not apply in the case of an offence proceedings for which are started before the commencement of that subsection.”
“( ) In relation to an offence committed before section 85(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 comes into force—
(a) a reference to a fine in the following provisions is to be read as a reference to a fine not exceeding the statutory maximum—
(i) section 60(3)(a);
(ii) in the Sexual Offences Act 2003, subsection (3)(a) of the section 15A inserted by section (Sexual communication with a child) above;
(iii) in the Female Genital Mutilation Act 2003, paragraph (b) of the subsection (2) inserted in section 5 by section 69(4)(b) above;
(iv) paragraph 4(5)(b) of the Schedule inserted in that Act by section 70(2) above;
(v) section (Controlling or coercive behaviour in an intimate or family relationship)(11)(b) above;
(vi) in the Prison Act 1952, subsection (4)(b) of the section 40CA inserted by section 71 above;
(vii) in that Act, subsection (4)(b) of the section 40CB inserted by section (Throwing articles into prisons) above.”
(b) the reference to a fine in paragraph 2(2)(a) of the Schedule to the Female Genital Mutilation Act 2003, inserted in that Act by section 68(2) above, is to be read as a reference to a fine not exceeding level 5 on the standard scale.”
Lord Bates
My Lords, as the House is well aware, there is no greater duty for a Government than the protection of its citizens in the face of a significant and very real threat to our safety and security. We are in the middle of a generational struggle against a deadly terrorist ideology. In such a climate, it is more important than ever to ensure that the police and our security and intelligence agencies have the right capabilities they need to tackle the threat from terrorism, both at home and abroad.
Only a short while ago, this House scrutinised a package of new powers in the newly enacted Counter-Terrorism and Security Act 2015. This Act significantly adds to the tools at our disposal to counter the threat posed in particular by British-born violent extremists. It disrupts the ability of people to travel abroad to fight, and to return here. It enhances our ability to monitor and control the actions of those in the UK who pose a threat, and it combats the underlying ideology that feeds, supports and sanctions terrorism. It is right and proper that we brought forward and enacted that legislation at the earliest opportunity, but we must also act at the earliest opportunity to ensure that when individuals who may pose a threat to our security have already travelled abroad to places of conflict, such as Syria and Iraq, to engage in terrorist-related activities, they too are not beyond the reach of the law when they return to the UK.
To this end, Commons Amendments 26, 27 and 29 provide for Clause 72 of the Bill to come into force on Royal Assent. The House will recall that Clause 72 will ensure that we are able to prosecute individuals who have prepared and trained for terrorism overseas by extending the extraterritorial reach of the offences in Sections 5 and 6 of the Terrorism Act 2006. Let me be clear that this measure does not come without safeguards. The Bill already makes clear that prosecutions cannot be brought retrospectively—that is, in respect of activities undertaken before the measure is commenced. We are also working with our law enforcement and security partners in advance of Royal Assent to ensure that this change is communicated to those who will use it.
I hope your Lordships will agree that, given the immediacy of the threat we are facing from terrorism and foreign fighters in particular, there is an overriding necessity to ensure that our law enforcement and security partners are provided with the right tools, as early as possible, to protect the UK public, and that this power should be available immediately. The other amendments in this group are minor or technical in nature. I beg to move.
“( ) sections 65 to (Child sexual exploitation);”