Serious Crime Bill [HL]

Lord Howarth of Newport Excerpts

Monday 16th June 2014 Lords Chamber

[Lord Howarth of Newport (Lab)]

My Lords, when I picked up my copy of the Times on Thursday I saw a story headed “Criminal gangs are running swathes of Britain, says May”. The story went on to say that,

“the home secretary is believed to be referring to parts of … cities in which drugs gangs run protection rackets”.

The situation is bad and the Home Secretary does well to acknowledge it. This Bill, which takes new powers to strengthen the capacity of the National Crime Agency and other agencies to deal with a range of serious and organised crime, is conspicuously focused on drugs crime, and it is on that that I should like to focus my remarks.

The Bill is an iteration of the Government’s strategy of prohibition: the criminalisation of production, supply, distribution, possession and consumption of classified substances. Its thrust is logical as an extension of prohibition, which has been the global orthodoxy since the first of the UN conventions in 1961, and which is most significantly expressed in our domestic law in the Misuse of Drugs Act 1971. The Bill represents a new offensive in the war on drugs, which was declared on behalf of us all by President Richard Nixon in the 1970s, and our Ministers still march under the flag of that great leader. The Bill is “one more big push”, as the generals in the First World War used to say. The casualties were terrible then; the casualties are terrible now.

If the Bill proceeds to the statute book it will strengthen the arsenal of our law enforcement agencies, with new powers of investigation, the seizure of criminal assets, tougher prison sentences, “enhancements”—as the Minister called them—of serious crime prevention orders and gang injunctions, a new offence of knowingly participating in an organised crime group and new provisions for the seizure of cutting agents used to bulk out illicit drugs.

In our enthusiasm to bring wicked people to justice and to put them behind bars, I hope that we shall, as we scrutinise this Bill, pay very careful attention to the Bill’s potential implications for civil liberties. The noble and learned Lord, Lord Hope of Craighead, the noble Baroness, Lady Hamwee, and my noble friend Lady Smith of Basildon have all drawn attention to Clause 41, which would create a new offence of participating in an organised crime group. We will need to be sure that the definitions that are legislated are appropriate and that the due diligence that will be required to enable lawyers, accountants and other professional people to demonstrate that they did not have reasonable cause to suspect that their client was seeking to manipulate ill-gotten gains is proportionate and manageable.

Gang injunctions presume criminality at a civil standard of proof, and we shall have to look carefully at that. As my noble friend on the Front Bench emphasised, we shall certainly need to make inquiries about the resources that the Government will make available to enable these measures to be effective. There is a crisis in our jails. A general election is coming along. Ministers in the Home Office are always particularly keen to be seen to be tough on crime in the run-up to a general election. We shall need to scrutinise to see which parts of the Bill are electoral puffery, which are reasonable and, above all, which might actually be effective. Will these measures help us at long last to turn the tide in the war on drugs? Will they even succeed in slowing the growth of the drugs economy?

In our era of prohibition, consumption of illicit substances in this country has soared. In the 1970s, one in 10 young people had taken cannabis. Now a quarter of 50 to 60 year-olds have used illicit drugs, as have a third of people in their 40s and more than half of people in their 20s and 30s. Ecstasy is enjoyed by 500,000 people a week. Cocaine, of poor quality, is available in towns and villages the length and breadth of the land. A new psychoactive substance arrives in this country at the rate of one a week. Britons are perhaps the biggest consumers of illicit drugs in Europe.

It would be helpful if, before we come to Committee, the Minister were able to let us have the Home Office’s own latest estimates of the scale of the consumption of mind-altering substances in this country, both legal and illegal. How many addicts are there in our society? What is now the size of the drugs economy? What are the costs to society, to the criminal justice system and to public expenditure overall? Some time ago I saw figures from the Home Office which estimated that the social and economic costs of illegal drugs in England and Wales amounted to £10.7 billion a year. Whatever the figure is, it is vast, and it is clear that we have not won the war against drugs.

Part 1 of the Bill, which provides new powers of confiscation and recovery of the proceeds of crime, certainly addresses an enormous problem. Money-laundering is big business in this country. The most notorious instance in recent years was that of HSBC. I believe that the members of the board of HSBC had no idea what their subsidiaries were doing in laundering money between Mexico and New York. Bankers in many institutions in the City of London, unburdened by civic responsibility or by any effective enforcement of regulation, came to the view that laundering drugs money was good business. They needed liquidity; they were addicted to bonuses; they risked, at the worst, fines which were a flea-bite. The Government have made the problem more difficult for themselves by encouraging wealthy people to come to live in this country as non-doms, but without interrogating them as they should about the sources of their wealth. The Chancellor is now enthusiastic about making the City of London a major offshore centre for dealing in the Chinese renminbi, notwithstanding that most new psychoactive substances are imported into this country from China. Let us hope that our new City regulators are less palsied than their predecessors.

We are talking not only of the City of London but of lawyers, accountants and estate agents throughout the country, who find it convenient not to ask the questions that the law already requires them to ask about the sources of their clients’ wealth and are too easily tempted by the high life which the processing of drugs money allows them to have. Less posh businesses on the high street—such as pubs, cafes, nail bars, taxi firms, even childcare organisations—are among the businesses that routinely transfer money out of the illicit economy into the licit one. Drugs would not be as ubiquitous as they are in this country if that were not the case.

How on earth is all this to be policed? Where will the resources come from, and what is the Home Secretary telling the police about their priorities? Of course the police achieve successes, and they should be congratulated and thanked for that. However, their task is impossible. They have to deal with 5,000 drugs cases a week on reduced budgets.

Clause 47, which enhances the injunctions to prevent gang-related violence and drug-dealing activity, is one that we shall want to look at. The Explanatory Notes tell us that the existing definition of a gang,

“is now considered by front line professionals to be unduly restrictive”.

I can well believe that. However, are these the same front-line professionals who have told us that it is their practice from time to time to go out to pick up small user-dealers as low-hanging fruit in order to meet their targets, and who have now been under instruction not even to do that after lunch because of the overtime costs of the bureaucracy, which extends so far into the evening?

The Home Secretary has done very well to challenge the police on practices that have meant that six times as many black people as white people have been stopped and searched on suspicion of carrying drugs. However, should we be worried that the new injunctions will similarly discriminate against young, black, poor men? Where are the Government’s policies to address the pathologies that generate the drugs culture—inequality, lack of mental health services, and a welfare state that fails to help people to turn their lives around?

The perversity of prohibition, which the Bill intensifies, is that it has proved to be an engine of crime. It has driven innovation in the drugs economy. You interdict the supply of a particular drug in one place, and the price of it rises. However, as my noble friend Lady Smith noted, demand does not consequentially fall. Demand for drugs, fed by addiction and peer pressure, is inelastic, so the drug dealers bring the drugs in by new routes, or, increasingly, they bring in new drugs.

The drugs economy and practice in drugs-taking constantly mutate. A drop in quality and availability was the prelude for the introduction of mephedrone into Britain. For a while mephedrone was cheap and legal. It was then banned, but even after it was banned its consumption rose by 20%. Its production was banned in China, but production shifted to India. The energies of the drugs gangs and the people who help them technically are for ever directed towards creating substitute drugs, many of them more dangerous than the drugs that have been proscribed and launched upon a market of ignorant consumers who know nothing about their composition, their toxicology and the dangers associated with them.

Over the past 50 years, prohibition has created and gifted to criminals across the world a vast, lucrative, destructive drugs economy. Governments and law enforcement agencies can try harder and run harder, but they catch very few of the criminals. The resources available to the criminals are often far greater than the resources available to the people enforcing the law and the criminals are utterly determined and ruthless. Globalisation has increased the scale of the problem vastly. Recently I stood on a cliff above the port of Salerno. Before me I could see containers piled high, stretching as far as the eye can see. Not more than some 2% of containers in world trade are inspected by the authorities.

The internet has transformed the marketing and supply of illicit drugs. The street corner is giving way to mail order. Mobile phones and social networking have facilitated communications between members of drugs gangs and between drug dealers and their clients. The European monitoring centre in Lisbon is currently monitoring 280 new psychoactive substances that are circulating in European markets. Moderately competent biochemists can with ease manipulate the molecular structure of one drug to create a new one. The dark web, encryption and bitcoins—which we shall come to at Clause 14(3)—have all made it easier to trade in drugs and harder to detect the trade.

Against that background, I was disappointed when the Home Secretary, in a response to the Home Affairs Select Committee, said that this Government do not think that,

“there is a case for fundamentally re-thinking the UK’s approach to drugs”.

I think it was Einstein who said that insanity consists in doing the same thing over and over again while expecting different results. I do not believe that it is a sensible strategy to overlay an anachronistic system of drug control that never worked, in a heavier version, on the new digital drugs economy. We need a different strategy. As the President of Guatemala has suggested, we should rid ourselves of this “global self-deceit”.

I challenge the premise on which this Bill is constructed, at least as far as its provisions about drugs are concerned. I do not advocate drug use. I believe that narco-criminals are evil and cause untold misery. Cannabis is certainly damaging to the mental development of young people. I sympathise entirely with parents in their fear of what may happen if their children get into drugs. However, I believe that we should base our policy on evidence. I believe that we should seek to minimise harms. There is no ideal solution available to us, but it will be possible for us to think again and instead adopt a policy, gradually and cautiously, of legalising and regulating the production and supply of selected drugs. At the same time we should give proper attention to education in our schools and to information to ensure that young people are properly informed and risk aware. I believe that it would be possible, using this entirely different strategy, to create a world that is much less bad in this regard than the world we have at the moment.