Lord Davies of Gower
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Lord Clement-Jones (LD)
My Lords, in moving Amendment 464 I will speak to Amendments 467, 468 and 503, in my name. These amendments collectively address the governance of Clauses 192 to 194, which grant the Secretary of State broad powers to make regulations giving effect to international law enforcement information-sharing agreements. Following the recent passage of the Data (Use and Access) Act 2025, we are now operating in a new legal landscape, where the statutory threshold for protecting data transferred overseas has been lowered. These amendments are not just desirable; they are essential safety mechanisms to fill that gap.
Amendment 464 would be a safeguard of, so to speak, look before you leap. It stipulates that, before regulations are made under Clause 192 to implement a new international agreement, the authority must publish a comprehensive privacy impact assessment. The necessity of this assessment has intensified following the enactment of the Data (Use and Access) Act. The UK’s new test for onward transfers of data has lowered the bar. It no longer requires foreign protections to be essentially equivalent to ours, but merely not materially lower. This creates a dangerous new risk profile. The European Data Protection Board has explicitly noted that this new test omits key safeguards against foreign government access and removes redress mechanisms for individuals. If the general statutory floor has been lowered, Amendment 464 becomes the essential safety net. We must assess these specific risks via a privacy impact assessment before we open the digital borders, to ensure that we are not exposing UK citizens to jurisdictions where they have no legal remedy.
This brings me to Amendment 467, which addresses the nature of the data being shared. Where regulations authorise the transfer of highly sensitive personal data, such as biometrics, genetics or political opinions, this amendment would require enhanced protective measures. All this highlights the illusion of data protection when transferring data to high-risk jurisdictions that lack the rule of law. We know that in authoritarian states domestic intelligence laws will always override the standard contractual clauses usually relied on for data transfers. Because the Data (Use and Access) Act has removed the requirement for foreign safeguards to be essentially equivalent, we cannot rely on the general law to protect highly sensitive biometric or health data. My amendment would restore the requirement that transfers of such sensitive data must be demonstrated to be strictly necessary and proportionate. We cannot allow efficiency of data sharing to deny the reality that, in some jurisdictions, once data arrives, the state will have unrestricted access. Transparency must follow these powers.
Amendment 468 would mandate the production of an annual report on international law enforcement information sharing. This is vital because we are entering a period of divergence. The European Commission, at the urging of the European Data Protection Board, will be monitoring the practical implementation of the UK’s revised data transfer regime. If the EU will be monitoring how our data laws operate, surely Parliament should be doing the same. We need an annual report to track whether these law enforcement transfers are inadvertently exposing UK citizens to jurisdictions where they have no effective legal redress. Without this feedback loop, Parliament is legislating in the dark.
Finally, Amendment 503 would ensure that regulations made under Clause 192 are subject to the affirmative resolution procedure. Given that the primary legislation governing data transfers has been loosened, it is constitutionally inappropriate for these specific law enforcement agreements to slip through via the negative procedure. Amendment 503 would ensure that these regulations, which may involve the transfer of our citizens’ most sensitive biometric data to foreign powers, must be actively debated and approved by both Houses of Parliament.
We support international co-operation in fighting crime, but it must not come at the cost of lowering our standards. These amendments would restore the safeguards that recent legislation have eroded. I beg to move.
Lord Davies of Gower (Con)
My Lords, we thank the noble Lord, Lord Clement-Jones, for his amendments and the importance that he has obviously placed on the right to privacy of the general public.
I support the principle behind Amendment 464. Sharing information often carries a risk with it, particularly when it is for the purposes of law enforcement, and especially when this is done internationally. Law enforcement data contains information that is far more personal to the individual or case in question than the norm. Any data of this sort must be handled with the highest discretion. Ensuring that the sharing of this data respects the right to privacy carries no unintended consequences and, most importantly, is necessary and should be the benchmark from which regulations are made.
If this amendment is accepted, I do not see the additional need for Amendment 468. At the very least, the privacy impact assessment under Amendment 464 should form the basis of any annual report that Amendment 468 would mandate. Less is more when it comes to admin and reports, so I am hesitant to support a new report that is not necessarily needed.
I think Amendment 467 is sensible. In general, internationally shared data should not include information prejudicial to any individual, let alone domestic citizens. This particularly extends to the sharing of biometric data for the purpose of unique identification or genetic identification.
These categories of data are obviously vital for the purposes of law enforcement, but law enforcement extra territorially risks placing this data in the wrong hands. This and similar data should therefore be particularly protected, which is the aim of the noble Lord’s amendment. I hope that the Minister can outline what the Government intend to do to ensure that the international sharing of personal data is undertaken in the most discreet and protected manner.
Lord Davies of Gower (Con)
My Lords, I thank the noble Baroness, Lady Brinton, for tabling this clause stand part notice. I would like to add my reservations about this clause.
First, I am concerned that this clause has not received sufficient scrutiny and consideration by Parliament. It was added on Report in the other place on 17 June last year. The Minister moving the new clause dedicated only 255 words to explain its effect and it was not mentioned by a single other Member. It has not received adequate attention. For that reason, I am pleased that the noble Baroness, Lady Brinton, has tabled this amendment to allow us to press the Government on the measures they are proposing.
The second point is the potential impact this clause could have on the right to a fair trial for British citizens. Under Section 20 of the Extradition Act 2003, where a person has been convicted in another country, the judge at the extradition hearing must first decide whether the person has been convicted in their absence and then decide whether the person deliberately absented themselves from the trial. If the judge is satisfied that the person was convicted in absentia and did not deliberately absent themselves from the trial, the judge must determine whether the person would be entitled to a retrial or to a review that amounts to a retrial in the territory to which the person would be extradited. If the judge does not believe that the person would be entitled to a retrial if extradited, the judge must discharge the prospect of extradition.
The Supreme Court in the recent cases of Bertino and Merticariu distinguished between the right to a retrial and the right to apply for a retrial. The court has held that a person’s entitlement to a retrial does not simply mean the person “might” be entitled to a retrial but that they “must” be entitled. This means that a conditional entitlement to a retrial that is dependent upon the finding of the court in the requesting country is insufficient for extradition to proceed. This places a decision on whether a fair trial can be had firmly in the hands of British judges. That is surely right. It is plainly preferable for the determination of the ability for a retrial to take place to be undertaken by a British judge, as opposed to merely relying on the decision of a foreign court.
However, in Clause 195, the Government are seeking to overturn this ruling, thereby removing a key safeguard against unfair extradition. If this clause is brought into force, the judge in Britain would have to order a person’s extradition on the simple assertion by the requesting country that the person could be permitted to stand trial in person, regardless of whether that is actually true or not.
Let us imagine a person who was tried in absentia and was not aware of their conviction in another country. If they were extradited and not permitted a retrial, they would not have been able to stand up in court and defend themselves against the charges they had been accused of. That is surely a recipe for serious injustice. In short, I am concerned that this clause will lead to more British citizens being extradited on the whim of a foreign judge and not afforded the right to a fair trial. For this reason, I very much support the proposition from the noble Baroness, Lady Brinton, that the clause should not stand part.
The Minister of State, Home Office (Lord Hanson of Flint) (Lab)
My Lords, I begin by saying how sorry I am that it is the noble Baroness, Lady Brinton, moving her proposition and not Lord Wallace of Tankerness, who we will greatly miss. As we all know, he was a staunch advocate for the people of Orkney and Shetland. I served nine years with him in Parliament, as we crossed over during that time, and found him to be an exemplary public servant as Deputy First Minister for Scotland and as a Member of Parliament. I had less contact with him in your Lordships’ House and I am genuinely sorry that I cannot have contact with him today. I pass my condolences to his family. I am also grateful to the noble Baroness Lady Brinton for taking up the cudgels on this specialist subject and doing it in a way that is professional. I promise that I will try to answer the questions and follow up on the points she has raised.
I am also grateful to the noble Baroness for reminding me of the constituency case of Paul Wright in Mold, which I dealt with in a former life as Paul Wright’s Member of Parliament, following the extradition case with Greece. I will have to google it to refresh all the details in my memory, but it was an important constituency case for me to take up as a Member of Parliament at that time. I am sorry that the noble Lord, Lord Davies of Gower, feels that this did not receive sufficient scrutiny, but I take his point, and I hope I can answer his points today.
Clause 195 standing part of the Bill means that, under the Extradition Act 2003, the UK may extradite individuals either to face trial or serve a sentence. Where a conviction occurred in absentia and the UK court finds the person did not deliberately absent themselves, the judge must determine whether they will be entitled to a retrial in the requesting state. This clause will amend Sections 20 and 85 of the 2003 Act to restore the original policy intention that the individual must have a right to apply for a retrial, not a guaranteed retrial, for extradition to proceed. The amendment is required, as the noble Baroness mentioned, following the Supreme Court’s judgment in Merticariu v Romania, which interpreted the current drafting of the 2003 Act as requiring a guaranteed retrial—something some states cannot offer. Without this fix, certain legitimate extradition requests could be blocked, undermining justice for victims.
I know the noble Baroness, Lady Brinton, mentioned this, but the amendment itself does not change any existing safeguards or processes governing extradition. The full suite of safeguards in the 2003 Act, including judicial oversight and human rights protections, remains unchanged. This includes the UK court’s powers to consider and determine whether someone deliberately absented themselves. I hope that gives her some reassurance.
The small government Amendment 537 makes minor drafting changes. It simply provides that Clause 195 will be commenced by regulations, as opposed to automatically coming into force on Royal Assent, as was originally planned.
I have heard what the noble Lord, Lord Davies of Gower, has said and I have heard the complex case that the noble Baroness, Lady Brinton, has mentioned. The noble Baroness, Lady Brinton, asked whether she could have a meeting with appropriate supporters to discuss this and I would be happy to do so. For the purposes of confirming that, I would be grateful if she could email me the details of who she wishes to attend that meeting. It is entirely up to the noble Baroness, Lady Brinton, but I would be happy if the noble Lord, Lord Davies, wishes to attend—or I could offer him a separate meeting if he wants to have further discussions or representations. If that can be discussed outside Committee, I would be happy to do that.
In the meantime, I hope the reassurances I have given are sufficient for the moment. I would be happy if the noble Baroness would withdraw her opposition to the clause standing part, pending any discussion, which I will ensure takes place if possible—subject to our diaries—before Report, as appropriate. If not, we can still have the discussion, so that we can at least reflect on the points that have been made today.
Baroness Brinton (LD)
My Lords, as a former trustee of UNICEF, I rise to support Amendment 469, so clearly presented by the noble Baroness, Lady Chakrabarti, and signed and spoken to by the noble and learned Baroness, Lady Butler-Sloss. Internationally, the minimum age of criminal responsibility is recognised as 12, and UNICEF has always been clear that it should be 14. I heard what the noble Lord, Lord Bailey of Paddington, said, and understand his concerns about the very large number of young people and children being groomed and pulled into criminal gangs. He is right to say that we need more concerted support in terms of police, education and youth work intervention, but it is not the children’s—younger children’s—fault that they have ended up there. The noble Lord, Lord Hacking, and the noble and right reverend Lord, Lord Sentamu, recognised that heinous crimes needed to be marked in a certain way, but both also commented on the fact that we needed to understand that these were children. I am really grateful for the comments of the noble and learned Lord, Lord Thomas of Cwmgiedd.
Your Lordships’ House has been discussing this for many, many years and as the noble and learned Baroness, Lady Butler-Sloss, said, she was campaigning on this long before she came into Your Lordships’ House. Now is the time; we need change. We need to do that because there is so much evidence now.
In 2011, Nicholas Mackintosh, who chaired the Royal Society study on brain development, told the BBC then that there was
“incontrovertible evidence that the brain continues to develop throughout adolescence”,
and that some regions of the brain, responsible for decision-making and impulse control, do not mature fully
“until at least the age of 20”.
That Royal Society report cited the
“concern of some neuroscientists that the … age of criminal responsibility in the UK is set too low”.
We are still discussing it today.
UNICEF’s view is that 14 should be the minimum age, using scientific research as a base, but it is very specific that no country should have the age below 12. This places England, Wales and Northern Ireland in breach of the UN Convention on the Rights of the Child, which is bad enough, but the real problem is a court system that assumes that children have capacity to make decisions when all the research shows that that is not reliable. It is wrong for a Government to assert that any interference with a child’s human rights can be justified.
UNICEF says in its excellent guidance note on youth offending published in 2022, that children under the minimum age of criminal responsibility,
“should not be considered (alleged) child offenders but, first and foremost, children in need of special protection”.
It says that offending behaviour by such children
“is often the result of poverty, family violence and/or homelessness … their involvement in offending behaviour is an indicator of potential vulnerability that has to be addressed by the social welfare system. Special protection measures for children … should address the root causes of their behaviour and support their parents/caregivers. The measures should be tailored to the child’s needs and circumstances and based on a comprehensive and interdisciplinary assessment of the child’s familial, educational and social circumstances”.
That matches the advice of the medical specialists too. Frankly, it is time that the Government stepped up and took the brave decision that we need to recognise that we are out of kilter with the rest of Europe and, frankly, most of the world.
Prosecuting children and holding them in young offender institutions does not give them the time and space to learn how to live their lives differently. We have heard from both the noble and learned Lord, Lord Thomas, and the noble and learned Baroness, Lady Butler-Sloss, about how the arrangements work for children in specialist secure accommodation. We can still use those systems but without giving children the label of being a criminal when, clearly, they are not capable of making the right decisions.
I am really grateful to my noble friend Lord Dholakia, who has been campaigning on this particular issue for decades before he came into your Lordships’ House in 1997. His Private Member’s Bill in 2017 resulted in a wide public discussion. It is a shame that, nine years on, we have not progressed further. Let us do so now.
Lord Davies of Gower (Con)
My Lords, this has been a genuinely interesting debate. The amendment in the name of the noble Baroness, Lady Chakrabarti, would raise the age of criminal responsibility in England and Wales from 10 to 14. For the reasons I will set out below, I am unable to support it.
First, the purpose of the age of criminal responsibility has not been designed to criminalise children unnecessarily. Rather, it is to ensure that the state can intervene early and proportionately when a child’s behaviour causes serious harm. As the noble Baroness, Baroness Levitt, the Minister, stated in this House, setting the age at 10 allows the justice system to step in at a point where intervention can prevent further offending and protect both the child and the wider public, and, crucially, children are not treated as adults. They are dealt with through youth courts under a distinct sentencing framework with rehabilitation as the central aim.
The evidence shows that the system already uses this power sparingly. We are told that, in 2024, only 13% of all children sentenced were aged between 10 and 14, and that proportion has been falling year on year. Of the 1,687 sentences imposed on children in that age group, just 23 resulted in custody. Those figures matter. They demonstrate that the age of criminal responsibility being set at 10 does not mean routine criminalisation of children. It means retaining a backstop for the most serious and persistent cases while diversion remains the norm.
Raising the age to 14 would create a dangerous gap. It would mean that children aged 10 to 13 who commit grave offences—including serious violence, sexual offences or sustained harassment—could not be held criminally responsible. This would limit the state’s ability to manage risk, protect victims and, in some cases, protect the child. There are rare but tragic cases—
Baroness Butler-Sloss (CB)
I am very grateful to the noble Lord. Section 44 of the Children Act deals with children who are a danger to themselves and to others. The only difference in the criminal court is that it comes through the family proceedings court, but in fact the local authority would have to deal with it and the child would be put into secure accommodation. I wonder whether the noble Lord could take that on board.
Lord Davies of Gower (Con)
I am grateful to the noble and learned Baroness for that. I do not dispute that fact; I quite accept it.
There are rare but tragic cases, such as the murder of James Bulger, where a criminal justice response is unavoidable and undoubtedly in the public interest.
I respectfully suggest that international comparisons cited in this debate are far from straightforward and can sometimes serve to confuse matters. In fact, certain countries are now moving in the opposite direction. Sweden, for example, is proposing to lower its age in response to gang exploitation of children who know that they cannot be prosecuted. That underlines a key point. If the threshold is set too high, it can incentivise adults to use children as instruments of crime.
It is also worth noting that, although Scotland recently raised the age of criminal responsibility, Scotland’s experience should not justify this amendment. Even after deciding the age of criminal responsibility should be raised from eight years old, Scotland raised the threshold to 12 and not to 14. The Scottish Government also retained extensive non-criminal powers to respond to serious harmful behaviour. This amendment would go significantly further without clear evidence that such a leap would improve outcomes for children or public safety.
It is worth noting that a number of Commonwealth countries retain the doctrine that a child is considered incapable of wrongdoing, which was abolished in England and Wales by the Crime and Disorder Act 1998. In many of those jurisdictions, the standard age of responsibility is similar to ours. Australia, for example, has a standard age of criminal responsibility of 10 years old, but a rebuttable presumption exists up to the age of 14. However, I should also stress that, simply because other countries may have higher ages than England and Wales, that is not, in and of itself, a justification to alter ours. We must ensure that the age of responsibility here is suitable for our needs—
Lord Marks of Henley-on-Thames (LD)
Before the noble Lord leaves the question of international comparisons, can he confirm that in Sweden the proposal is to lower the age of criminal responsibility from 15 to 13, rather than leaving that unsaid?
Lord Davies of Gower (Con)
I cannot confirm that, but I will certainly have a look at it.
The question is not whether children should be protected but whether removing the ability to intervene criminally until 14 years old would make children, victims or communities safer. I do not believe that it would. The current system already prioritises proportionality and rehabilitation, while retaining the capacity to act when it is absolutely necessary. For those reasons, I cannot support this amendment.
The Parliamentary Under-Secretary of State, Ministry of Justice (Baroness Levitt) (Lab)
My Lords, my noble friend Lady Chakrabarti has a long and honourable record of raising issues on behalf of some of the most vulnerable in society. She and the noble and learned Baroness, Lady Butler-Sloss, make a formidable team when moving this amendment. I am very grateful to them for ensuring that this important issue remains at the forefront of every Government’s mind, including this one.
It was about a fortnight ago that your Lordships’ House debated this issue in response to my noble friend’s Oral Question. I said at the time, and repeat today, that the age of criminal responsibility is a complex and sensitive issue. I want to take this opportunity to set out in a bit more detail than the Oral Questions format allows why the Government believe that we should keep the age of criminal responsibility at 10 years old.
Lord Davies of Gower (Con)
My Lords, it might not surprise the Committee to hear that I do not support this amendment and I am sure I will find myself making the same arguments as the Minister when he responds.
In 2021, Parliament passed the Covert Human Intelligence Sources (Criminal Conduct) Act, which was introduced to this House by my noble and learned friend, Lord Stewart of Dirleton. Its effect was to create a legislative framework through which covert intelligence officers can be authorised to participate in conduct which would normally be criminal. The criminal conduct authorisation might be granted under Section 29B of the Regulation of Investigatory Powers Act 2000, as inserted by the 2021 Act, only if it is proportionate and necessary, in the interests of national security, prevention of crime and disorder, or in the interests of our economic well-being. Subsection (6) of that section also requires the person authorising the criminal conduct to ensure—and this is important—that all alternative avenues that do not make use of criminality have been exhausted. Subsection (7) states that the decision to grant an authorisation is required to comply with the Human Rights Act 1998. Finally, there is an explicit goal for the Investigatory Powers Commissioner.
Therefore, there already exists a number of safeguards to prevent covert intelligence officers overstepping the bounds of their authorisation and to ensure that the authorisation itself is tightly drawn and strictly necessary. When a criminal conduct authorisation is granted, the officer to whom it relates is permitted to engage in the specified criminal conduct and cannot be prosecuted for that conduct. It is perfectly well understood and accepted that covert agents do, on occasion, have to engage in such criminal conduct in the course of their operations. It is absolutely right that the law protects them when this is the case.
It is also worth noting that the 2021 Act did not create new powers for the police and intelligence services; it simply placed on a statutory footing the mechanism by which they can be authorised to engage in criminal behaviour. This is surely preferable to having the whole system working on the side and in the dark.
The noble Baroness, Lady Chakrabarti, proposes in her Amendment 470 to remove the criminal and civil immunity provided to officers when they commit a criminal offence in pursuance of an authorisation to do so. She proposes replacing it with a defence to criminal or civil charges. However, she has also included an exception to that possible defence—when an officer encourages, assists or attempts to discredit the person who is under surveillance. I find this a startling exception. If a covert officer is given a criminal conduct authorisation and that authorisation, taking into account all the available safeguards, includes permission to commit an inchoate offence, I cannot see why that officer should not be able to do so. Certainly, the officer should not be held criminally or civilly liable.
I am sure the Minister will have further points to add, but we on these Benches cannot support this amendment.
Baroness Chakrabarti (Lab)
Is the noble Lord saying that he supports officers or their assets acting as agents provocateurs, inciting crime rather than investigating it?
Lord Davies of Gower (Con)
I am not saying that at all. We all recognise that things have gone wrong, but what I say generally is that this type of policing—indeed, quite a number of aspects of policing—is about testing the law. Certainly, this is the case with the involvement of CHISs.
Baroness Jones of Moulsecoomb (GP)
The noble Lord mentioned all the safeguards, but why does he think the safeguards failed not once, but multiple times, and over quite a number of years?
Lord Davies of Gower (Con)
I cannot answer for all the cases that have gone wrong; indeed, I cannot answer for any cases that have gone wrong—it is not my place to do that. I can say, however, that it very much depends on good leadership and good supervision, and all of that comes down to good training. It has always been my view that training is at the core of all of this.
Baroness O'Loan (CB)
Does the noble Lord accept that statutory blanket immunity from civil or criminal action acts as a barrier for people who are affected by such unlawful activities? It is a significant concern because of the impact that barrier has on those who might need to bring such action, and who might have difficulty getting funding or access to the necessary support. Then, there is an ongoing huge impact on trust in the police.
Lord Davies of Gower (Con)
Trust in the police in this area is essential. I am not sure I quite get the gist of what the noble Baroness is asking, but I am very happy to discuss it outside the Chamber later, if that would help.
Baroness O'Loan (CB)
It was about statutory blanket immunity—the extent of the immunity.
Lord Davies of Gower (Con)
Again, I would have to have a look at that before I give an answer. I am very happy to discuss it with the noble Baroness.
Lord Hacking (Lab)
Can the noble Lord comment on the case of R v Barkshire, and does he endorse the behaviour of the counter-intelligence officer in that case?
Lord Davies of Gower (Con)
I am not entirely sure that I know all the facts of that case, so I am probably not qualified to answer that question. I spent my job putting people behind bars, not defending them. I am not a lawyer; I would not like to take that any further, frankly.
Lord Hanson of Flint (Lab)
My Lords, I am grateful to my noble friend Lady Chakrabarti for her amendment. The discussion today has taken me back to my time in Northern Ireland, when I had to see the product of covert intelligence. As Counter-Terrorism Minister in 2009, I had to see the product of that intelligence, so I understand the value of that. I also understand that the amendment seeks to amend the Regulation of Investigatory Powers Act 2000 by removing the legal protections for covert human intelligence sources who have been tasked by the police and a limited number of other public authority agencies, such as the intelligence services, with engaging in specific, tightly defined, pre-approved criminal conduct. Furthermore, the amendment seeks to remove protections for CHISs engaged in such authorised criminal conduct where it engages the offences of encouraging or assisting an offender under the Serious Crime Act, or seeks to discredit those who are subject to a particular investigation. I understand the motive behind what my noble friend has brought forward.
I begin by addressing the undercover police inquiry, raised by the noble Baronesses, Lady Miller of Chilthorne Domer and Lady Jones of Moulsecoomb, my noble friend Lord Hacking and the noble Baroness, Lady Brinton, from the Liberal Democrat Front Bench. I took office in July 2024, and the undercover policing inquiry had operated for nine years at that stage. It is clear that the historical allegations under consideration by the inquiry are absolutely appalling. Such behaviour should rightly be condemned. The inquiry is ongoing, and we await the findings and any recommendations, but let me assure all those who have spoken that I am now responsible in the Home Office for managing inquiries, and I wish to see recommendations as soon as possible, for the very reasons noble Lords and Baronesses have mentioned today.
The current landscape around undercover operatives is much changed, and since 2013 enhanced safeguards have been put in place, but the Government want to see the lessons of that inquiry and consider them as soon as possible.
Noble Lords may recall the Covert Human Intelligence Sources (Criminal Conduct) Act 2021, which has been referred to today, and the revised CHIS code of practice of 2022, mentioned by the noble and learned Lord, Lord Thomas, which were subject to debate and approval both here and in the House of Commons. This scrutiny includes consideration of similar amendments proposed by my noble friend at the time.
I say to noble Lords generally, including my noble friend Lord Hacking, that CHIS play a crucial part in preventing, detecting and safeguarding the public from many serious crimes, including terrorism, drugs and firearms offences, and child sexual exploitation and abuse. Those who do it do so at such personal risk to themselves. I noted and welcome the support from the noble Lords, Lord Davies of Gower and Lord Jackson—I will take the support where I can get it. It needs to be properly authorised and specifically defined criminality by the state, and they do so knowing that they will not be penalised for carrying out that activity, particularly by those engaged in criminal or terrorist activity, who may otherwise pursue legal action against them.
It is important that we place on record that CHIS authorisations and criminal conduct authorisations under Part II of the Regulation of Investigatory Powers Act 2000 can be validly given only where the proposed conduct is necessary, proportionate and compliant with the Human Rights Act. Valid authorisations make activity carried out in relation to them “lawful for all purposes”, providing protection from criminal and civil liability. However—I know my noble friend knows this—should a court find that the authorisation does not satisfy these necessary requirements, or should the conduct go beyond what is permitted by the authorisation, it will not be rendered lawful.
Given the significance of these powers, it is important to note that there are independent and effective avenues of oversight and redress, and that these exist—I know that colleagues who have spoken know this, but it is worth putting on the record again—via the Investigatory Powers Tribunal for anyone who believes they have been subject to improper activity by a public authority using covert investigatory powers.
Lord Davies of Gower (Con)
My Lords, I fully understand the noble intentions behind Amendments 472 and 473, tabled by the noble Lord, Lord Alton of Liverpool. The crimes he speaks of are among the most abhorrent and the work he has done is admirable. He is to be warmly congratulated. However, for reasons I will set out, the Opposition cannot support the amendments.
We must first recognise that the British justice system has, first and foremost, a responsibility to uphold the rule of law and punish criminality in Britain. Similarly, the British Government have, first and foremost, a responsibility to protect the security of Britain, and this must be our principal concern. The British Government are not a global Government; we cannot police the world, and we must be very open and honest about that.
It is also a more than unfortunate fact that there are a number of Daesh fighters and other terrorists who have been returned to Britain but have not successfully been prosecuted for the crimes the noble Lord, Lord Alton, refers to. Daesh committed widespread war crimes, genocide against Yazidis and numerous crimes against humanity. To pick up on the noble Lord’s point, if we have people in Britain who committed these heinous crimes but have not yet been prosecuted, I am not sure we should be adding even more by bringing prosecutions against people with no connection to the United Kingdom. Let us prosecute those who have been involved in genocide and war crimes who are in the UK first, before we start trying to prosecute others.
It is also very important that we do not simply welcome people with terrorist connections back into our country. We on these Benches are firmly supportive of the Home Secretary robustly using her powers to exclude people from the United Kingdom who pose a threat to the British people and, where necessary, to strip particularly dangerous people of their British citizenship.
Finally, there is also a question of where prosecutions should best take place. There is a compelling argument for prosecutions and investigations to take place closer to where the crimes were committed, which should allow for a better evidence-gathering process. Ultimately, we must be careful not to subordinate the safety and security of the British public for the purposes of advancing international law. For these reasons, we cannot support the amendments.
Lord Garnier (Con)
Can my noble friend comment on the remarks of the noble Lords, Lord Verdirame and Lord Macdonald of River Glaven? Did he find nothing in what they had to say the least bit attractive?
Lord Hanson of Flint (Lab)
I am grateful to the noble Lord, Lord Alton of Liverpool, my old home city, for the way in which he has approached these amendments. I thank him for the work of the Joint Committee on Human Rights, which he chairs, and through him I pass on my thanks to my old colleague Sarah Champion, the MP for Rotherham, for the work she has done on this issue. As he knows, we had an opportunity to debate the committee’s report in Grand Committee. I was fortunate that my noble friend Lord Katz took the debate on that occasion and was able to set out the Government’s response, which the noble Lord, Lord Alton, will realise has not really changed in the intervening months since that debate. However, I am grateful to him, my noble friend Lady Kennedy of The Shaws, the noble Lords, Lord Wigley and Lord Macdonald of River Glaven, and the noble and right reverend Lord, Lord Sentamu, for their supportive comments, and I will come on to comments from other noble Lords in due course. I know the noble Baroness, Lady Ludford, is not in her place at the moment, and missed the start of the debate so was therefore not able to speak in this debate—although she tried—but if she reads Hansard tomorrow, she can make any points she was going to raise in a letter to me and we will consider those prior to Report, which I hope is a fair compromise.
Before I go on to the main bulk of the arguments, I refer to the noble Lord, Lord Wigley, and his comments on the death of Mr Ryan Evans, of Wrexham, which is close to both him and me. It is obviously a deeply sad incident and his death in Ukraine in 2024 followed a Russian strike, as the noble Lord outlined. The UK Government continue to support efforts to ensure accountability for the crimes that are committed in Ukraine. This includes supporting the independent investigation of the International Criminal Court into the situation in Ukraine, as well as providing assistance to Ukrainian domestic investigations and prosecutions of international crimes. Although I cannot give him much succour today in relation to that particular issue, I hope he will pass on the Government’s condolences to Ryan’s parents. We are obviously happy to have further representations on that matter should he wish to make them in due course.
The points made by my noble friend Lord Katz in the previous debate—and those with which I shall respond to the noble Lord, Lord Alton of Liverpool—relate to the fact that the UK applies its universal jurisdiction only to a very few specific international crimes. Our approach to universal jurisdiction is designed to ensure that those suspected of, or accused of, crimes are investigated, charged and tried fairly and impartially at every stage, with access to all available evidence. This is in accordance with local constitutional and legal frameworks. It remains the case—and I know this will disappoint those noble Lords who have spoken in support today—that we do not believe that it is necessary at this time to extend the scope of the UK’s policy on universal jurisdiction to include genocide, war crimes and crimes against humanity. It is the long-standing view of successive Governments in general that where there is no apparent link between the UK and an international crime—and this goes to the point the noble Lord, Lord Davies of Gower, made—we support the principle that such crimes are best investigated and prosecuted where they are perpetrated. That also goes to some of the points mentioned by the noble Lord, Lord Verdirame, because the advantages of securing evidence and the witnesses required for a fair investigation and a successful prosecution are part of a credible judicial process.
It should be noted that the UK already has jurisdiction over the crimes of genocide, war crimes and crimes against humanity where they are alleged to have been committed by UK nationals or residents. In some cases where the UK does not have jurisdiction, such as in Ukraine—I have just mentioned the situation in relation to Mr Ryan Evans, as alluded to by the noble Lord, Lord Wigley—we are trying to ensure that we build domestic capabilities, and we support the work of the Office of the Prosecutor General to ensure that allegations of war crimes are fully investigated by independent, effective and robust legal mechanisms.
To go back to the point made by the noble Lord, Lord Verdirame, the most serious international crimes not covered by the UK’s universal jurisdiction policy are generally already subject to the jurisdiction of the International Criminal Court, which, again, I would argue today, is better placed to prosecute such offences where they are not being dealt with by the relevant domestic authorities. The UK is a strong supporter of the ICC and its mission to end impunity. I know that we will do what we can to ensure that the crimes that have been mentioned today are dealt with by that international court, but I have to say that the debate that we had in the Moses Room, led by my noble friend Lord Katz, and the response I have given to the amendments today are the Government’s position. I accept and respect the points that have been put to the Committee today, but given the considerations that I have mentioned, I ask the noble Lord, Lord Alton, to withdraw his amendment. In saying that, I suspect we will return to these matters on Report. The Government will always reflect on what has been said in Committee, but I hope in due course the noble Lord will withdraw his amendment.
Baroness Doocey (LD)
My Lords, economic crime is not a marginal issue. It is a national crisis affecting millions of people every year but, generally speaking, it goes under the radar most of the time. These are not victimless offences: they destroy life savings, devastate small businesses and undermine trust in our economy and democracy. When economic crime goes unchecked, it is not the powerful who suffer but ordinary people.
The amendment is modest and pragmatic. It would not establish a new fund; it simply asks for a viability study. I know the Minister is never keen even on turning a semicolon into a comma but, in this instance, it is not asking an awful lot of the Government—the Minister must stop stabbing his heart—just to agree to look at a viability study. It is really not a big deal. There are already clear precedents for this approach, as the noble Baroness, Lady Jones, just said; the FCA, the Ministry of Justice and parts of the police are already able to retain fines in different ways. If the Government are really serious about the UK’s reputation as a global financial centre, they must match rhetoric with resources. Can I persuade the Minister, for once, to move and just say yes?
Lord Davies of Gower (Con)
My Lords, I thank the noble Lord, Lord Cromwell, for moving this amendment. Economic crime is one of the most pervasive threats to public trust and business confidence in the UK. In the year ending March 2024, fraud accounted for around a third of all crime recorded by police. Industry estimates suggest that economic crime costs the UK economy tens of billions of pounds per year, according to police statistics. These staggering statistics underscore the need for effective enforcement and resourcing.
In this context, the need to seek more sustainable and predictable resourcing for economic crime enforcement is understandable. The proposal to assess the viability of an economic crime fighting fund based on reinvesting a proportion of receipts from enforcement reflects a desire to tackle this persistent and widespread issue. I recognise that there may be merits to an approach that allows specialist technology and expertise to be built and retained over multiple years.
The amendment also calls for an examination of the impact of budget exchange rules on the functioning of the asset recovery incentivisation scheme. There have been reports that recovered assets sometimes cannot easily be redeployed by front-line investigators and that incentives can be blunted by accounting constraints. If funds that are recovered through enforcement cannot, in practice, be retained or redeployed effectively by those doing the work, it is sensible to ask whether the current framework is optimally aligned with the policy objective of strengthening economic crime capability. However, I recognise that any move towards hypothecation of enforcement receipts raises potential governance issues, and there is also the question of how such a fund would sit alongside existing funding streams and the Government’s wider strategy in this area.
I therefore look forward to the Minister’s response to this amendment. I would be grateful if he could outline what steps the Government are currently taking to fight economic crime and whether they believe that any further action is required.
Lord Hanson of Flint (Lab)
I am grateful to the noble Lord, Lord Cromwell, not just for his amendment today but for his patience in sitting through the Committee debates prior to introducing his amendment this evening. I am also grateful for the meeting we had with him and Phil Brickell, MP for Bolton West, in October and the meeting we had on 18 November.
It is important that Amendment 482 is considered. It would require the Government to consult on the viability of a ring-fenced economic crime fighting fund, and the intention of the amendment is to examine whether such a fund could provide multi-year resourcing for tackling economic crime. I am grateful for the comments from the noble Baronesses, Lady Doocey and Lady Jones of Moulsecoomb, in support of the amendment. The amendment recognises the significant harm that economic crime causes—reflected in the contributions made—to individuals, businesses, the economy and wider society.
The Government remain committed to tackling economic crime. That is evidenced not just by words in this Chamber but by our continued investment through the asset recovery incentivisation scheme and the economic crime levy, which has allocated £125 million to tackling economic crime in recent months. These schemes are delivering state-of-the-art technology to provide law enforcement agencies with the tools they need to stay ahead of criminals. It also includes an important factor, which is the recruitment of 475 new officers across the threat leadership, intelligence, investigative and prosecution capacity. We are putting people on the ground to deal with this issue as part of the, we hope, tangible benefits that we can get in the fight against economic crime. As a Government, we want to continue to work with our partners to ensure that we are most effectively investing the funding available.
I understand and accept—and did so in the face-to-face discussions we had with the noble Lord, Lord Cromwell, and the Member of Parliament Phil Brickell—that the call for sustaining funding is an important one that needs to be investigated. I want to confirm to the noble Lord what I hope is of help to him: the Government are committed to exploring the funding landscape with the aim of strengthening economic crime enforcement. This is witnessed by the statements we have made in the recently published economic anti-corruption strategy, which was published last December —particularly paragraph 42, on page 23, which I quote for the noble Lord:
“In the context of Spending Review 2025”,
we will
“explore the funding landscape with the aim of strengthening economic crime enforcement”
as a joint Treasury and Home Office priority commitment in that anti-corruption strategy.
This strategy is fixed and there was a timescale for it when published. I hope that the noble Lord, Lord Cromwell, will accept our intentions in identifying the issues that he has raised and not just doing what we have done to date, which is to ensure that we have put resources in already. I hope that that review commitment in the strategy from December is of help to the noble Lord regarding the objectives of his amendments here today.
With that commitment, I would be grateful if he would at least welcome it and hold us to account on it and, in doing so, withdraw his amendment today.
Lord Davies of Gower (Con)
My Lords, I thank the noble Baroness, Lady Miller of Chilthorne Domer, the noble Earl, Lord Russell, and the noble Lord, Lord Cromwell, for tabling their amendment. As a rural-dweller myself, I agree and recognise many, if not all, of the offences that have been identified. Our rural communities are incredibly important. On this side of the Committee, the Opposition have made it an absolute priority to support them in this difficult time. That support extends past simply fiscal policy following recent tax policies to all issues that affect them, including crime. It is promising that, last year, rural crime fell by over 16%, but there is still work to be done. Those offences still cost rural communities over £44 million a year—a fact that underlined our pledge to set up local taskforces to tackle rural crime.
Our objectives are not different from those of the noble Baroness; we simply differ on delivery. A top-down, centralised approach is never normally the most effective way to tackle local disconnected issues, and rural crime is a prime example of this. It is far less the operation of the highly organised criminal gangs we see in our cities, and more often the actions of an isolated few who sense an opportunity to steal or exploit the countryside and act on it.
Localised problems require localised solutions. Police forces are budgeted based on local needs, and are therefore the most alert to the specific issues facing their communities. It should be them organising taskforces to tackle rural crime, as they have the knowledge and ability to act and adjust to the changing crime picture in their area. While we agree with the noble Baroness’s intentions and entirely support them, we would much rather see funding directed to local forces and delegate responsibility to them and their taskforces to tackle the rural crime that we all want to see curbed. I hope the Minister agrees.
Lord Hanson of Flint (Lab)
My Lords, I am grateful to the noble Baroness, Lady Miller of Chilthorne Domer, for raising these issues, and to the noble Lords who have spoken in support of her. As someone who represented a rural constituency in the House of Commons for 28 years, I can say that things such as sheep worrying, isolation and local policing were meat-and-drink on a daily basis. In fact, the north Wales rural crime unit was the model for a lot of the work that has been done on rural crime at a national level. I therefore appreciate and understand the problems that are faced by rural communities. I say to the noble Baroness and others that the Government remain committed to tackling those crimes that particularly impact our rural communities.
Noble Lords have spoken today about some of the government measures being brought forward, but I want to address them as a whole. As part of our safer streets mission, we are introducing important measures to protect rural communities that look at clamping down on anti-social behaviour, strengthening neighbourhood policing and preventing the very farm theft that the noble Lord, Lord Cromwell, spoke of, as well as the issue of fly-tipping, which has been mentioned by noble Lords today. I would also add shop theft to that. That is an important issue because, particularly in rural areas where there is perhaps only one shop, an organised crime gang, or regular shop theft, can impact small independent businesses very strongly. We are trying to deal strongly with those issues. Rural communities across England and Wales are already better protected from the rising threat of organised gangs, and we have new strategies to tackle crimes plaguing countryside areas.
I was struck by my noble friend Lord Forbes of Newcastle, who focused not just on the rural crime issues that I know he is aware of but raised important issues around fraud and the isolation that fraud can bring. I advise him that, in a three-year fraud strategy that we intend to publish in relatively short order, the Government intend to look very strongly at those issues and at what we can do in that space.
Developing a robust response to a rural crime is extremely important. I know that noble Lords have mentioned it, but the objective of the amendment is, as the explanatory statement says,
“to establish a task force to produce a strategy for tackling rural crime”.
I say to the mover of the amendment that, in November 2025, the Home Office, Defra and the National Police Chiefs’ Council published the Rural and Wildlife Crime Strategy, which, in essence, does what the amendment asks for, and which will bring together the points that the noble Lord, Lord Cromwell, asked for, with ministerial oversight. The strategy is a vital step in the mission to provide safer streets everywhere.
There is also a Defra-led rural task force that was set up last year—that sounds like a long way away, but it was just over a month ago—with the aim of gathering evidence through a series of meetings and workshops to look at the specific challenges faced in rural areas. The evidence gleaned from the workshops is being examined, and it will be used to outline the Government’s strategic ambition for rural communities.
Some of the points that noble Lords have mentioned today, such as tackling equipment theft, are a huge concern. I understand that. We intend to implement the Equipment Theft (Prevention) Act 2023, which will introduce forensic marking and registration on a database of all new terrain vehicles and quad bikes. I am also pleased to say that we recently announced removable GPS systems. Those are demands that I had just over a year ago when I went to the rural crime conference chaired by the police and crime commissioners for Norfolk and Cheshire. We have acted on that.
Clause 128, which has already been considered, contains a valuable tool for the police that will help them tackle stolen equipment. It will ensure that, where it has not been reasonably practical to obtain a warrant from the court, the police can enter and search premises that have been electronically tagged by GPS or other means and where items are present that are reasonably believed to have been stolen. That is a very strong signal for organised criminals that we are going to track and monitor them and have a non-warranted entrance to their property if they have stolen equipment—and we will hold them to account for it.
I was pleased to be able to announce last year at the police and crime commissioners’ conference a long-term commitment of £800,000 for the National Rural Crime Unit and the National Wildlife Crime Unit. We have committed to replicating this year’s funding next year, in 2026-27; in what are tight and difficult financial times, we have still managed to commit that funding to help to support the National Police Chiefs’ Council in achieving the aims of that strategy.
To go to some of the specific issues that the noble Baroness, Lady Miller, mentioned, such as hare coursing, the establishment of that unit and work that it has done, and through that unit Operation Galileo, has seen a 40% reduction in hare coursing—again, that was mentioned by the noble Lord, Lord Cromwell, as a specific problem that has existed and causes great difficulties in rural areas.
We have also looked not just at the excellent work of the National Rural Crime Unit but, overall, at how we can tackle rural crime in an organised way. Again, I recognise that there are challenges. The Government separately, through the Statement that we made only a couple of days ago in this House, are looking at reorganising and shrinking the number of police forces, and we are going to have a commission to look at that, with a review, in the next few months to come to some conclusions. We are trying to centralise some national activity on serious organised crime, which is very much behind a lot of that rural crime. That landscape will need to be looked at.
The noble Lord, Lord Cromwell, referred to what I said on Tuesday night. We are looking at how we review the funding formula—that is important. Again, I cannot give specific answers on that today, but I would say to the noble Baroness who moved the amendment and noble Lords who have spoken to it, including the noble Lord, Lord Davies of Gower, that significant work is being done on this. We have a strategy and a task force; we have co-operation with Defra and specific measures being brought in that have been called for for a long time on equipment theft and wildlife crime, as well as on the funding of the unit. We have looked at a range of other measures that we will bring forward to tackle organised crimes in rural areas. With the neighbourhood policing guarantee, we are looking at every neighbourhood police force having named, contactable officers dealing with local issues. We are putting 13,000 of those neighbourhood police officers in place over the next three to four-year period, which will mean that we have 3,000 extra neighbourhood police officers by March this year and 13,000 by the end of this Parliament. That is focusing people from the back room to local police forces.
Again, there is a big mix in this, and I know that noble Lords will appreciate that it is a significant challenge at the moment, but I hope that that work is helpful and that the direction of travel suggested by the amendments is one that noble Lords can understand we are trying to achieve. With that, I hope that the noble Baroness will withdraw her amendment.
Lord Cromwell (CB)
I will follow the strictures just put on us to stay with the amendment. I say to the noble Lord, Lord Deben, as he still came back for another bite, that as someone who sat on the Industry and Regulators Committee that looked into the water industry in detail, I know that the Victorian system reached its capacity in 1960, and public and private ownership both failed in different ways for the simple reason that he gave: short-termism. That is the problem we face: the multiple billions that have to be spent over a long period, and no Government looking to get re-elected for the next five years will ever spend it.
Lord Davies of Gower (Con)
My Lords, I thank the noble Baroness, Lady Bakewell of Hardington Mandeville, for tabling this amendment and the noble Earl, Lord Russell, and the noble Baroness, Lady Jones of Moulsecoomb, for putting their names to it and contributing today.
Although we understand the noble Baroness’s intention, we do not believe that this amendment is the right approach to ensuring that our water companies act ethically and serve the customer. Neither do we believe that increasing offences for companies or for individuals is the right approach to decreasing water pollution. They are already subject to the powers of Ofwat and the Environment Agency; additional measures will just drive up legal costs and encourage hostile behaviour.
The Water (Special Measures) Act of last year placed a new duty on companies to publish an annual pollution incident reduction plan, and we should wait and see what the outcome of that policy is before we attempt to legislate further. It is undoubtedly an important issue, but we simply do not believe that this is the best way to go about it. I look forward to hearing the Minister’s response.
Lord Katz (Lab)
I thank the noble Baroness, Lady Bakewell of Hardington Mandeville, for tabling the amendment, the noble Earl, Lord Russell, for moving it, and the noble Baroness, Lady Jones of Moulsecoomb, for putting her name to it and speaking to it. I enjoy—well, “enjoy”—sparring on issues of water ownership and water companies. Usually it is in Oral Questions rather than in the middle of the Crime and Policing Bill but, hey ho, you take your chances wherever you can. I also thank the noble Lord, Lord Deben, for bringing his sense of history and active participation over a number of decades, if I may say so, on the issue of water ownership and stewardship. I found myself agreeing—which may not be too strange—in no small part with many of his comments.
Before I get into the meat of my remarks, I want to be clear: as the noble Lord, Lord Deben, said, the Government are not going to nationalise the water industry. It would cost around £100 billion.
Lord Marks of Henley-on-Thames (LD)
My Lords, I fully support this amendment. I agree effectively with every word that has fallen from the lips of the noble and learned Lord, Lord Garnier, the noble Lord, Lord Ponsonby, and my noble friend Lady Brinton, and almost every word uttered by the noble Baroness, Lady Fox of Buckley. I hope that the Government will listen and give careful consideration to this amendment.
The law of joint enterprise has long been unsatisfactory. It was substantially improved by the decision of the Supreme Court in the Jogee case, as explained by the noble and learned Lord, Lord Garnier. The present state of the law in the light of Jogee is that an offence is committed by an accessory only if the defendant charged as an accessory intended to assist the principal in the commission of the offence. Even so, the law is still unsatisfactory and unclear, as extensively supported by the academic evidence cited by the noble and learned Lord, Lord Garnier, and by the noble Lord, Lord Ponsonby, and it sorely needs reform.
The phrase “significant contribution” to the commission of the offence used in the amendment is apt. It would overcome the difficulties mentioned by the noble and learned Lord, Lord Garnier, with the Court of Appeal’s position on the related accessory offences of procurement. The phrase has been proposed by the Centre for Crime and Justice Studies and widely by academics. It was the phrase used in Kim Johnson’s Private Member’s Bill, which was supported by, among others, Sir Bob Neill, who was then chair of the Justice Select Committee, and therefore one presumes by the committee itself.
While the expression may in some ways seem vague, it sets exactly the type of test that juries can and do recognise and regularly apply, rather similarly to the test for dishonesty used in relation to Theft Act offences. The amendment would make an offence of being an accessory much more comprehensible and justifiable than the present test. The present test, I suggest, focuses disproportionately on the mental element of accessory liability, whereas the amendment would focus on the actual contribution of the accessory to the commission of the offence.
There is considerable cause for concern that joint enterprise law in its operation is discriminatory. The noble Lord, Lord Ponsonby, mentioned the research showing that Black people are 16 times more likely to be prosecuted on the basis of joint enterprise than white people. The noble Baroness, Lady Fox, mentioned the same research. What neither mentioned is that that staggering figure—I suggest that it is staggering—was based on the CPS’s own figures for 2023.
I accept that there may be cultural issues, as mentioned by the noble Baroness, Lady Fox, but they have to be judged against the caution that was mentioned by my noble friend Lady Brinton. There is also serious evidence of unjustified, unwarranted group prosecution. There is significant concern about evidence of racial bias and the risk of guilt by association in consequence. The point made by the noble Baroness, Lady Fox—that it sometimes may seem easier to prosecute for joint enterprise than by establishing individual guilt—is, or may be, justified. Concerns about guilt by association and gang involvement are entirely legitimate. I think they are shared by the public, and they are evidenced by the clear examples we have heard today. They evidence a lack of principle in prosecution and in the application of the law.
In evidence to the Leveson review, Keir Monteith KC and Professor Eithne Quinn from the University of Manchester argued that joint enterprise was overused. They went so far as to say that it contributed, as inevitably statistically it does, to the growth of the backlogs. They cited the trial of seven Black teenagers in 2022 who were accused of murder, where the prosecution accepted that they could not be sure who stabbed the victim, but asserted that all of those who went to the park where the killing occurred
“shared responsibility, at the very least contributing to the force of numbers”.
That was an inaccurate or, at the very least, incomplete statement of the law in the light of Jogee. Six of the seven defendants were acquitted, but the fact that they were tried and went through the period that they did prior to trial highlights the confused state of the law, which makes the essential ingredients of the offence difficult for jurors and sometimes even prosecutors to understand.
We should also take into account, particularly given the delays in bringing trials to court, the serious risk of charges based on joint enterprise leading to defendants who are ultimately acquitted being held on remand, as one of the seven defendants in the case I mentioned was for no less than 14 months.
Finally, I have a technical point that was mentioned by the noble and learned Lord, Lord Garnier, to whom I had mentioned it. While I support the amendment completely, it needs to be reworded or supplemented to cover summary offences. That is because, as a result of the amendment of Section 8 of the Accessories and Abettors Act 1861 by the Criminal Law Act 1977, the accessory offence under the 1861 Act applies only to indictable offences—offences that are either indictable only or triable either way. A parallel amendment to Section 44(1) of the Magistrates’ Court Act 1980 is required to cover summary offences. There is no justification for distinguishing between them. With that rather academic point, I hope that the Government will act on this.
Lord Davies of Gower (Con)
My Lords, I am grateful to my noble and learned friend Lord Garnier for bringing forward this amendment and for the care and intellectual rigour with which he has set out the case for revisiting the law on joint enterprise. He has laid out a clear case for why this area of criminal law generates much concern, not least because of the length of sentences involved and the understandable anxiety about culpability and clarity in attributing criminal responsibility.
My noble and learned friend has, rightly, reminded the Committee of the complex and often unsettled journey that this area of law has taken, from the missteps identified by the Supreme Court in Jogee through to more recent Court of Appeal decisions, which some commentators argue have again widened liability in ways that risk injustice. His concerns about overcriminalisation and the potential for convictions where an individual’s role is marginal are serious points that deserve careful reflection. I look forward to hearing the Minister’s thoughts on them.
That said, while I welcome this debate and acknowledge the force of many of the arguments advanced, I am not persuaded that this amendment provides the right statutory solution at this stage. The introduction of a requirement that an accessory must have made a “significant contribution” to the commission of an offence raises difficult questions of definition and application. What amounts to “significant” is not self-evident. If left undefined, it would inevitably fall to the courts to develop meaning over time through case law, creating precisely the uncertainty and inconsistency that this amendment seeks to address. Alternatively, attempting to define “significant contribution” exhaustively in statute risks rigidity and unintended consequences across a wide range of factual scenarios. Tied to this, there is currently a wealth of case law that can be applied by the courts when considering joint enterprise. This case law would be made redundant in many scenarios if the law were to be changed by this amendment, which would surely not be desirable.
I believe that my noble and learned friend acknowledges that this amendment may not be the only way, or even the best way, but rather uses it as a probing amendment to draw attention to the problem. There is clearly an ongoing need to ensure that the law of secondary liability remains anchored to principles of intention, causation and moral culpability and that juries are properly directed to distinguish between meaningful participation and mere presence.
However, given the Law Commission’s ongoing review of homicide and sentencing, which includes consideration of joint enterprise in light of Jogee, I am cautious about pre-empting that work with a statutory change that may generate further ambiguity. Reform in this area must be evidence based and coherent. While I welcome the discussion sparked by this amendment and commend my noble and learned friend for his persistence in pursuing clarity and justice, I cannot lend the amendment my support today. However, I hope the Government will reflect carefully on the concerns raised and indicate how they intend to ensure that the law on joint enterprise is both fair and clearly understood.
Baroness Doocey (LD)
My Lords, as the Home Secretary observed in the recent White Paper, policing has not always kept pace with a rapidly changing world. Airspace has indeed become a new frontier for both opportunistic and organised crime. Drones are now being used by burglars and organised gangs as near-silent scouts, identifying empty homes, weak locks or high-value items through windows. The law can, of course, address the burglary that follows, but it struggles to capture the preceding act of reconnaissance. This is particularly relevant to rural crime, where drones are acting as the advance guard for the theft and export of GPS equipment.
In our prisons, drones are described by residents as “almost routine”, delivering drugs, phones and weapons straight into exercise yards. Ministry of Justice data shows more than 1,700 drone incidents in a single year. That fuels violence and instability across the estate. However, as the Justice Committee pointed out last October, the problem is not only the drones but the conditions that allow them in: broken windows, unmaintained netting and faulty CCTV. Creating a new offence may have value, but it cannot by itself remedy years of underinvestment in the prison system.
I want to raise two further concerns. The first is an operational one. With core capital grants under severe strain, how can we realistically expect overstretched forces to invest in drone detection and countersurveillance technology? Secondly, until national integration plans are fully delivered, data on drone incursions will remain largely trapped in 43 police silos, leaving us blind to the wider intelligence picture.
Lord Davies of Gower (Con)
My Lords, I thank the noble Lord, Lord Cromwell, for tabling his amendment. We entirely understand the intention behind it and support its aim.
In government, we gave police forces the power to intercept or seize drones suspected of being used to break the law, and those that attempt to smuggle drugs or weapons into prisons. Before the 2024 election, we announced our intention to implement no-fly zones around prisons, extending the current provisions over airports. We therefore entirely support the aim of prohibiting drone use for criminal ends. Using drone technology as a reconnaissance tool for a crime is self-evidently wrong and that should be reflected in the law.
Similarly, using drones to carry drugs, stolen goods, weapons, harmful substances or anything similar must be tackled by the police. For the police to do so, they must be given the means. Nowhere is this more evident than in prisons, where drugs and weapons are being transported in by drones in order to run lucrative illegal businesses. Reports suggest that some offenders are deliberately breaking probation terms in order to sell drugs in jail, where they can make more money. Anything that enables this must be stamped out. If drones are indeed a means of transport for many of these drugs, we should target those who operate the drones and play a part in criminal enterprises. I hope that the Minister recognises this problem and will agree with me that the amendment is entirely correct in its aims.
Lord Katz (Lab)
I thank the noble Lord, Lord Cromwell, for setting out the case for his amendment. In tabling the amendment, he wrote to my noble friend Lord Hanson of Flint and to my noble friend Lord Hendy of Richmond Hill at the Department for Transport on the issue.
I think across the Committee we share the same concerns. I stress that the Government take the issue of the use of drones to facilitate illegal activity extremely seriously. However, my noble friend Lord Hanson of Flint set out in his letter to the noble Lord that the challenges of responding to these are not gaps in our criminal law so much as limitations on the practical enforcement tools available and in regulation to improve the visibility and compliance of drones. We are working to address these issues by supporting the development of counter-drone technologies and operational approaches, and ensuring regulations are in place that enable the legitimate use of drones while assisting operational responders in identifying illegitimate users.
Amendment 486A seeks to criminalise the use of drones for criminal reconnaissance and the carrying of illicit substances. The act of criminal reconnaissance is not in itself currently an offence, as proving intent, prior to an act being committed or without substantive additional evidence, would be extremely difficult for prosecutors. Criminal reconnaissance using a drone encounters the same issue. It would be impractical and disproportionate to arrest anyone for taking photos of a property or site, or for piloting a drone. In both instances, the act of reconnaissance would not be practically distinguishable from legitimate everyday actions, making the proposed offence effectively unenforceable. Where intent could be proven, it is likely that such acts could be prosecuted under existing legislation—for example, the offence of going equipped for stealing in Section 25 of the Theft Act 1968.
The carrying of illicit materials, whether it is in and out of prisons or elsewhere at large, is already an offence, regardless of a drone’s involvement. There is already a comprehensive regime of offences relating to the possession and supply of drugs, weapons and other illicit materials. I do not think that the amendment would address any gaps in the criminal law.
The Government have already made changes to the unmanned aircraft regulations to require drones to be equipped, as the noble Lord, Lord Cromwell, set out, with direct remote identification, which will improve visibility and accountability of compliant drones. This system will allow drones to broadcast identification and location information in-flight and will help identify drone operators who may be acting suspiciously or breaking the law.
I share the sentiment of the noble Lord and the Committee in seeking to curtail the use of drones for criminal purposes. However, for the reasons I have outlined, I ask that he withdraw his amendment and let me sit down—as I have a cough.
Lord Davies of Gower (Con)
My Lords, this is a short and uncontroversial amendment. The 15 days in Committee we have had on the Bill have been a very long but important process, and I thank all the noble Lords on the Front Bench opposite for the many hours dedicated to the Bill so far. The amendment makes an amendment to the regulation-making powers of Welsh Ministers in consequence of the Legislation (Procedure, Publication and Repeals) (Wales) Act 2025, and for that reason I have no objection.