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House of Lords

Monday, 16 June 2014.

2.30 pm

Prayers—read by the Lord Bishop of Derby.

Death of a Member: Lord Macaulay of Bragar

Announcement

2.37 pm

The Lord Speaker (Baroness D’Souza): My Lords, I regret to inform the House of the death of the noble Lord, Lord Macaulay of Bragar, on 12 June. On behalf of the House, I extend our condolences to the noble Lord’s family and friends.

Palestine

Question

2.37 pm

Asked by Baroness Tonge

To ask Her Majesty’s Government what plans they have to recognise the state of Palestine.

The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi) (Con): My Lords, we continue to judge that a negotiated, two-state agreement remains the only way to resolve the conflict once and for all. That is why we are focused on supporting the parties in finding a way to resume serious dialogue. As my right honourable friend the Foreign Secretary has said, we reserve the right to recognise a Palestinian state at a moment of our choosing and when it helps best to bring about peace.

Baroness Tonge (Ind LD): I thank the Minister for her reply, but does she recall that in the Queen’s Speech, we were promised foreign policy,

“based on respect for national sovereignty, territorial integrity and international law”?

Should we therefore recognise the state of Palestine immediately to make up for time lost, encourage our European partners to do so too, and suspend the EU-Israel association agreement if Israel does not withdraw from the territories that it has occupied illegally since 1967?

Baroness Warsi: My Lords, as we said during the Palestinian upgrade at the UN General Assembly in 2012, ultimately we would like to see a Palestinian state represented through all organs of the United Nations and recognised as a Palestinian state. However, we feel that the best way to reach a solution to these matters is through a negotiated process, and we still believe that Secretary Kerry’s proposal presents an opportunity to engage and to talk.

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Lord Pannick (CB): My Lords, does the Minister agree that progress towards a peace settlement would be enhanced if Hamas were able to secure the release of the three Israeli teenagers who were kidnapped in the West Bank last weekend? Will the Government do all they can to seek to secure that objective?

Baroness Warsi: The Government have strongly condemned the abduction of the three Israeli youths in the West Bank. We are deeply concerned about the escalation of violence on the ground, and for the sake of both Israelis and Palestinians I hope that further escalation can be avoided. We are still trying to find details of what is happening on the ground, but of course it has led to escalation, including, tragically, the death of a Palestinian child.

Lord Winston (Lab): My Lords, given the instability, conflict and violence in the countries that surround Israel, is it not understandable that the Israeli Government are deeply concerned about a Government who might be led by Hamas and who are committed to the destruction of Israel?

Baroness Warsi: My Lords, we welcome the new technocratic Government, who are made up mainly of people who are not affiliated to political organisations. We are heartened by the fact that the quartet principles have been endorsed by the new technocratic Government.

Baroness Falkner of Margravine (LD): My Lords, does my noble friend recall that over the last two years she has stood at the Dispatch Box and told the House on many occasions—I think mainly during 2013—that this year was the last chance saloon for achieving a peace process in the Middle East? Given where we find ourselves, what is the United Kingdom Government’s position on achieving a peace process now that the Americans have more or less said that there is nowhere further to go? Will the Government consider replacing the current system of the Middle East quartet envoy and so on with a fresh impetus and a completely new look at whether a two-state solution is indeed the right answer?

Baroness Warsi: My noble friend is right: I have stood at this Dispatch Box over the last 12 months, if not more, talking about the concern over the changing situation on the ground. We are running out of time to achieve a two-state solution because the situation on the ground continues to deteriorate. That is why we were so supportive of the discussions that Secretary Kerry was leading. My noble friend is also right that we have to start looking at other options that are available to us, because what we want in the end is a two-state solution. That requires a safe and secure Israel, but it also requires a viable Palestinian state. As to the role of the quartet, my noble friend will be aware that it is not just for the United Kingdom to impose who leads it. I would be interested to hear from the Benches opposite whether they feel a change in personnel is needed.

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Lord Wright of Richmond (CB): My Lords, does the noble Baroness accept that there is virtual unanimity, and not only in this House, on the urgent need for a two-state solution to the Palestinian problem? Does she accept that the recent reconciliation agreement between Fatah and Hamas offers the Israelis a unique opportunity to work genuinely towards a two-state solution? On the point raised by the noble Lord, Lord Pannick, if this story is true it is horrendous, but is the Minister aware that similar outrages are being committed daily by the Israeli Defence Forces and by the settlers themselves? This is the time to recognise Palestine as a state.

Baroness Warsi: Of course, ultimately peace will be achieved only if there is a unified authority in the Palestinian territories to which we can speak—a unified organisation that represents both Gaza and the West Bank—as long as it abides by the quartet principles. I can stand at this Dispatch Box and give a list of things that the Israelis are alleged to have done and a list of things that the Palestinians are alleged to have done, but I am not sure whether that blame game is going to take us any further. What I am clear about is that a Palestinian life and an Israeli life are equally important. It is therefore right that what we do respects the sanctity of life, and the basic human rights that people require whether they are Israeli or Palestinian.

Lord Bach (Lab): My Lords, is it Her Majesty’s Government’s intention to work with the new Palestinian unity Government? Presuming that it is, could the House be told what specific steps our Government are taking in that regard?

Baroness Warsi: As I said earlier, we have recognised the technocratic Government; we feel that they provide an opportunity to take matters further. We give great credit to President Abbas, who has made sure that the technocratic Government have been set up in a way that is acceptable to the international community and are an organisation of government that we can work with. With regard to the UK’s approach, the noble Lord will of course be aware that we have been one of the biggest supporters of ensuring that a future Palestinian state is viable, not only through the work that we have been doing in establishing and supporting institutions but in relation to the humanitarian work on the ground with both financial support and expertise. We will continue to do that, because we are firmly committed to ensuring that there is a viable Palestinian state when that moment arises.

Lord Dykes (LD): My Lords, does my noble friend agree that the biggest tragedy of all would be if these two countries did not come together and shake hands, similar to South Africa? Once that happens, they can work together to create a Near East common market, and peace will prevail for everyone.

Baroness Warsi: I agree with my noble friend as a Foreign Office Minister but also on a personal level. As someone who has lived through this dispute for most of her life—it has formed so much of my own

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identity as I have grown up—there is nothing I would like more than to be in a Government who finally managed to resolve this matter.

National Health Service: Nursing Staff

Question

2.45 pm

Asked by Baroness Kennedy of Cradley

To ask Her Majesty’s Government why there has been a reduction in the number of senior nurses in the National Health Service since 2010.

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con): My Lords, local NHS organisations are best placed to determine the skill mix of their workforce and must have the freedom to deploy staff in ways appropriate for their locality. Some organisations have reviewed their nursing staff structures to ensure that they are delivering quality of care for patients. This has resulted in a decrease of some senior posts. However, there has been an overall increase in nursing numbers, with over 3,300 more nurses, midwives and health visitors since 2010.

Baroness Kennedy of Cradley (Lab): I thank the Minister for that reply, but since 2010 there has been a decrease of 4,000 senior nursing posts—modern matrons, ward sisters and specialist nurses, which we all recognise, as indeed do the Government, as being universally critical to patient care. Are the Government not worried about the fact that, on the one hand, trusts are saving money by decreasing these senior nursing posts yet, on the other hand, they are spending money by increasing the pay of executive directors by 6%? What are they going to do about reversing this worrying trend, and how are they going to tackle this dangerous loss of experience and skill in our NHS?

Earl Howe: My Lords, the figure that I have is in fact a decrease of just over 3,000 nurses in senior positions at bands 7 and 8, but that is more than made up for by the increase of over 7,500 nurses at bands 5 and 6 on the front line. On the noble Baroness’s second point, the figures that I saw emanating from the Royal College of Nursing should be looked at with some caution; the RCN has included exit packages for executive directors but not for nurses. In fact, the latest independent evidence shows that for the third year running there was no increase in median executive board pay. It is important to compare like with like there, and the figure of 6.1% as a rise for executive directors is not one that we recognise.

Baroness Cumberlege (Con): My Lords, does my noble friend agree that one of the most encouraging aspects of the nursing profession is the number of senior nurses who have gone on to be chief executives and board members in the NHS, bringing all the skills of nursing to the leadership of hospital trusts and clinical commissioning groups?

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Earl Howe: I agree with my noble friend. To ensure that nurses have the leadership skills, styles and behaviours that our healthcare system needs, the NHS Leadership Academy has launched the largest and most comprehensive approach to leadership development ever undertaken. More than £46 million has been invested in core programmes that will map to foundation-level, mid-level and executive-level leadership development, with two programmes specifically for nurses and midwives that started in March last year.

Lord Hunt of Kings Heath (Lab): My Lords, given the answer that the Minister has just given to his noble friend, surely it is ironic that throughout the NHS the number of senior posts is actually being squeezed. Would he not agree that that runs counter to what Francis said post-Mid Staffordshire about the need for highly effective quality supervisory nurses? Is the reason why this is happening not that the NHS cannot afford to increase its nurse staffing levels with the amount of money that it has been given by the Government? Something has gone, and unfortunately it is these crucial posts that seem to be having to give way.

Earl Howe: My Lords, I do not agree with that because nursing numbers are now at a record high, which cannot indicate that hospitals are being starved of resources for their nurses. I do not see it as ironic that some senior posts have been reduced, bearing in mind the effect of Robert Francis’s report which has caused hospitals to increase the number of nurses on the wards. By and large, nurses at grades 7, 8 and 9 are in managerial positions and not in front-line posts.

Baroness Manzoor (LD): My Lords, can the Minister say if an impact assessment has been undertaken on losing senior nurses from the NHS and the impact it has on service standards? The noble Lord, Lord Hunt, has already made the connection with the Francis report. Can the Minister also say whether an exit strategy has been undertaken to see why senior nurses are leaving?

Earl Howe: My general answer to my noble friend is that it is not for the Government to decide how many nurses hospitals should employ. We have not done an impact assessment. That is a matter for local hospitals to judge. They are in the best position to do that, based on the needs of their patients and local communities. What the Government should do, and are doing, is to ensure that staffing levels are available for public scrutiny and comparison on a patient safety website. That work is currently in train. It will now be much more evident to patients and the public what their local hospital is doing in terms of safe staffing ratios.

Baroness Finlay of Llandaff (CB): My Lords, before seven-day working comes in, are the Government ensuring that senior nurses are also taking part in the seven-day rota to ensure that their expertise is available both in hospitals and in the community to support other nurses at more junior grades?

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Earl Howe: My Lords, the work going on on seven-day working certainly includes the nursing workforce. However, I repeat that it is not for the Government to mandate what each and every hospital should be doing in terms of deploying their senior nursing staff. It is a judgment for the board of that hospital.

Lord Warner (Lab): My Lords, the Minister is very proud of the increase in the number of nurses on the front line. Can he confirm that all these nurses are actually in hospitals? What is the comparable figure for nurses working in the community? I believe the Government’s policy is supposed to be to have more care in the community.

Earl Howe: The noble Lord is right. The Government recognise the very important contribution that community nurses make in providing high-quality care to people within community settings. I think we have seen a reaction, as I have said, to the Francis report. Lots of hospitals say that they are going to employ more nurses on the wards. We now need to ensure that staffing levels are safe across the NHS and the community, and the Chief Nursing Officer has set up a working group which is looking specifically at what we can do to increase the number of community nurses, which we certainly need to do.

Baroness Masham of Ilton (CB): My Lords, does the Minister agree that specialist nurses are not being replaced when they retire and that there is great concern about this as they do such valuable work for many specialties?

Earl Howe: I acknowledge the valuable role played by specialist nurses in a number of disciplines but, once again, it is up to employers to exercise their responsibility to manage turnover, retention, recruitment and skill mix to ensure that they have sufficient workforce supply to meet the levels of staffing that the hospital or organisation needs. Here again, patient safety is paramount.


Digital Bill of Rights

Question

2.54 pm

Asked by Lord Mitchell

To ask Her Majesty’s Government whether they consider that there is a case for a digital bill of rights to protect personal privacy and promote a free and open internet.

The Minister of State, Ministry of Justice (Lord Faulks) (Con): My Lords, the Government are acutely conscious of the need for the protection of individuals’ privacy both online and offline. We believe that the protection of these rights should go in tandem with, and not be at the expense of, an open, innovative and secure internet that promotes economic growth and freedom of expression. We believe that sufficient

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safeguards already exist to protect individuals’ privacy through the Data Protection Act 1998, together with other legal remedies.

Lord Mitchell (Lab): My Lords, I thank the Minister for that reply. We are all under digital surveillance, not only by the security services but also by retailers, hospitals, online suppliers and network operators. They are able to collate massive amounts of data about who we are, where we go, what we buy, who we speak to and even the state of our health. Next year is the 800th anniversary of Magna Carta. To celebrate this in a modern setting, should we not introduce a digital Magna Carta, designed to guarantee our online rights and privacy?

Lord Faulks: The noble Lord is of course right to remind us of Magna Carta and its impending anniversary. The Government are not, at the moment, minded to introduce a Bill or any legislation of the sort that the noble Lord refers to. Of course we must be nimble to protect those rights which are expressed digitally. However, there are, as I said in my Answer to his Question, a number of remedies available. The Information Commissioner’s Office performs its task well and, for the moment, any legislation brought in by the Government or the party opposite should emphasise not only rights but responsibilities.

Baroness O'Neill of Bengarve (CB): Does the Minister think that the new draft data protection regulation now in process in Brussels will provide more or less adequate protection of personal privacy in the event that it is passed without further amendment?

Lord Faulks: I think that the noble Baroness is referring to the so-called “right to be forgotten”. The Government have some reservations about this. Anxiety has been expressed in the light of this proposed amendment to the directive and the recent decision of the ECJ. The progress of this directive is still a matter of active consideration and negotiation by the Government.

Baroness O'Neill of Bengarve: My Lords, I was referring to the draft data protection regulation—which is not a directive—not to the right to be forgotten.

Lord Marks of Henley-on-Thames (LD): My Lords, the noble Lord, Lord Mitchell, rightly raised this privacy issue in the Queen’s Speech debate. Most of us are, I suspect, blissfully unaware that the so-called location services on our mobiles act as an insidious spy in the pocket, constantly recording our every movement wherever we go. Should we not at least start by obliging smartphone and network providers to tell us clearly what personal information they collect and how, and how we, as consumers, can turn it off?

Lord Faulks: The noble Lord is right that this is a source of anxiety and a matter which continues to alarm all sorts of people and organisations. The consumer

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has a role to insist on this information being provided. That, rather than legislation, is probably the answer for the moment.

Lord Foulkes of Cumnock (Lab): Is the Minister aware of the vile, personal internet abuse heaped on supporters of the union in Scotland, including the author JK Rowling—in her case merely for giving £1 million to Better Together? Will he condemn this and indicate whether a Bill as proposed by my noble friend, or some other legislation, could be introduced to protect all of us who suffer such attacks?

Lord Faulks: I am happy to agree with the noble Lord that this is an appalling practice, and I deplore what has been said about those with a particular viewpoint. The internet being used in this way is the enemy of democracy. We should nevertheless be hesitant before we prevent access to the internet. Russia, China and some of the Arab states prevent access to the internet. Once you start doing so, you prevent some of the advantages, economic and otherwise, of this extraordinary phenomenon, now 25 years old.

Baroness Kidron (CB): My Lords, given the centrality of the internet and digital technologies to the lives of young people, can the Minister tell me what the Government are doing to make certain that young people can explore the creative potential of the online world knowledgably, fearlessly and with an understanding of the privacy issues?

Lord Faulks: The Government are certainly trying to protect children from access to parts of the internet to which it would be most ill advised for them to have access. We are trying to promote by a number of means responsible use of the internet but, once again, my answer is that, for the moment, we ought to hesitate before using legislation to do this. However, I entirely accept what the noble Baroness says about the importance of responsible access.

Lord Harris of Haringey (Lab): The Minister talks about the importance of protecting children, but do not all consumers need protection on the internet? While it may not be appropriate to legislate, would it not be appropriate for the Government to put their weight behind requiring that there is a robust system of identity assurance so that you know who you are dealing with on the internet and a robust system of age assurance so that only people of an appropriate age can access material that is appropriate for that particular age group? The Government’s weight would surely be helpful in making sure that that was delivered by contractors.

Lord Faulks: The noble Lord is right in that the Government should, and indeed do, work with internet industries to improve—or in some cases to limit—access. An example of that is what they have been doing with children’s access online. The Government have a strong track record of working with the internet industries to drive progress, to allow parents to have network-level domestic filtering, parental internet controls and the

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like, and to ensure the availability of family-friendly public wi-fi in places children are likely to be. Of course, it must be remembered that all individuals have their normal legal rights, wherever the information is contained.


Health: Rheumatoid Arthritis

Question

3.01 pm

Asked by Baroness Brinton

To ask Her Majesty’s Government what steps they are taking to ensure that general practitioners are trained to recognise potential rheumatoid arthritis symptoms, and refer such patients immediately to rheumatologists.

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con):My Lords, the Government’s mandate to Health Education England includes a commitment that it will ensure that general practitioner training produces GPs with the required competencies to practice in the NHS. The content and standard of medical training is the responsibility of the General Medical Council. The current GP curriculum requires trainees to successfully complete training on care of people with musculoskeletal problems, which includes rheumatoid arthritis.

Baroness Brinton (LD): My Lords, I thank my noble friend for his helpful Answer. However, the reality is that too many GPs do not recognise the symptoms. A new report published today by the National Rheumatoid Arthritis Society shows that a shocking 25% of patients have to stop work within the first year of diagnosis, and with the delays their clinical outcomes are poorer and it costs the NHS much more. What will the Government do to raise awareness of symptoms, particularly among GPs?

Earl Howe: My Lords, I pay tribute to the National Rheumatoid Arthritis Society, which is organising Rheumatoid Arthritis Awareness Week this week, between 16 and 22 June. I am aware that Public Health England has run early diagnosis campaigns, which up to now have focused largely on cancer. However, I understand that a broader focus on earlier diagnosis is currently being considered. What might be done to tackle other conditions or symptoms has yet to be decided, but I will keep the noble Baroness informed of developments.

Lord Turnberg (Lab): My Lords, one of the problems is that there are still far too many single-handed general practices, which have great difficulty providing a full range of services. Are the Government doing anything to try to bring them into bigger groupings?

Earl Howe: My Lords, we are encouraging single-handed practices not to disband but to federate themselves—if that is a good word—with other practices in the area, and certainly to seek the support of their clinical commissioning group. That would ensure that

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the range of professional training available is utilised and that there is peer support where appropriate. Therefore, while many single-handed practices do a very fine job, there is scope for them to collaborate with their colleagues in the local area.

Baroness Howarth of Breckland (CB): My Lords, I am sure that the noble Earl will tell me that it is the responsibility of either NHS England or the local health commissions, but is he not alarmed by the number of GP practices being suggested for closure at the moment, and by the long waiting times that patients have to endure in many areas? In some country areas you cannot see your GP for four weeks. Should the Government not have at least some concerns on that?

Earl Howe: My Lords, we are concerned by reports of patients having difficulty accessing their GPs. That is why a whole range of work is currently going on in NHS England to look at the issue, to see how general practices can be helped and to enable them to see more patients. However, more generally, we in the Government have amended the GP contract to free up GPs’ working time. We have abolished well over a third of the QOF indicators precisely to do that. The Prime Minister’s Challenge Fund—£50 million-worth of funding—enables GPs to open up different ways of working; for example, consulting patients on Skype and working hours other than nine to five.

Baroness Gardner of Parkes (Con): My Lords, although it is very important for GPs and even patients to be aware of early symptoms, does the Minister acknowledge that the real answer as to how to deal with this condition will be in research? Can he tell us whether the Government are supporting such research?

Earl Howe: I am grateful to my noble friend. Expenditure on musculoskeletal disease research by the National Institute for Health Research has increased from £15.5 million in 2009-10 to £23.1 million in 2012-13. The NIHR is investing over £21 million over five years in three biomedical research units in musculoskeletal disease. They are all carrying out vital research on rheumatoid arthritis. The NIHR is currently investing £2 million in a programme of research on treatment intensities and targets in rheumatoid arthritis therapy.

Baroness Wheeler (Lab): My Lords, can the Minister tell the House what impact the very worrying reported shortage in take-up of family doctor training places is likely to have on the ability of GPs to support patients with potential rheumatoid arthritis symptoms? A recent survey by Pulse found that only 7% of the funding for medical schools goes into teaching general practice. Does this not augur badly for the future of primary care?

Earl Howe: My Lords, we of course recognise the very hard work that GPs do. Despite a decrease in headcount, there has in fact been a 1.2% increase in full-time GPs since 2012 and the number of practice nurses and practice staff has also grown. However, we

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also recognise that the workforce needs to grow to meet rising demand. That is why our mandate to Health Education England requires it to ensure that 50% of trainee doctors enter GP training programmes by 2016. Generally, we will work with NHS England to consider how to improve recruitment, retention and return to practice in primary and community care.

Lord Warner (Lab): My Lords, is not the current model of general practice in this country bust? Is it not time that the Government started to think about setting out the requirements that all GPs who offer services to NHS patients ought to make available? If that means them working in bigger practices then so be it, because that is in the interest of patients.

Earl Howe: My Lords, the noble Lord is right that there is scope to examine different ways of working in primary care. I would have to think about whether I would go quite as far as he has, but the point of principle he makes is a very sound one. That is why the Prime Minister’s Challenge Fund is encouraging GPs to think out of the box in the way they make themselves accessible to patients.

European Union (Withdrawal) Bill [HL]

First Reading

3.08 pm

A Bill to repeal the European Communities Act 1972; and to make provision for the Secretary of State to repeal any enactment that has been a consequence of the European Communities Act 1972.

The Bill was introduced by Lord Pearson of Rannoch, read a first time and ordered to be printed.

Serious Crime Bill [HL]

Second Reading

3.09 pm

Moved by Lord Taylor of Holbeach

That the Bill be read a second time.

The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con): My Lords, under this Government crime is down by more than 10%, but there is much more to do. Serious and organised crime remains a pernicious threat to our national well-being, our economy and our security, costing the country at least £24 billion a year. Later in the Session, your Lordships will have the opportunity to consider a Bill that deals with the evils of human trafficking and modern-day slavery. But serious and organised crime takes many other forms, including drug trafficking, high-value fraud, counterfeiting, organised cybercrime and child exploitation. This Bill is aimed at tackling all such manifestations of serious and organised crime.

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Alongside the establishment of the National Crime Agency last October, we published a comprehensive Serious and Organised Crime Strategy. The aim of the NCA and of the strategy is nothing less than to deliver a substantial reduction in the level of serious and organised crime. The National Crime Agency assesses that there are around 36,600 individuals operating in 5,300 organised crime groups in this country. I am sure most people are taken aback by these figures.

A key strand of our strategy is to prosecute those individuals and otherwise disrupt their activities to make it increasingly hard for them to operate. Ensuring that the NCA, the police and prosecutors have the powers they need relentlessly to pursue organised criminals lies at the heart of the Bill. One means of disrupting serious and organised crime is to deny criminals the use of their assets and to confiscate their ill gotten gains. Under this Government, more assets have been confiscated from criminals than ever before. Since 2010, we have seized more than £746 million and have frozen assets worth some £2.5 billion.

The Proceeds of Crime Act 2002 continues to provide a basically sound framework for ensuring that criminals are not able to enjoy the profits of their crimes. But it hardly comes as a surprise that criminals will use every tactic they can to frustrate and slow the process, exploiting any weakness or loophole in the legislation. Part 1 of the Bill seeks to close such loopholes and tighten up the operation of the Proceeds of Crime Act. The key changes we are making to POCA will enable restraint orders, which freeze a defendant’s assets, to be obtained more easily and earlier in an investigation; reduce the time allowed to pay confiscation orders; enable the court to determine a defendant’s interest in property, to ensure that criminal assets cannot be hidden with spouses or with other third parties; require the courts to consider imposing an overseas travel ban for the purpose of ensuring that a restraint or confiscation order is effective; and extend the existing investigative powers so that they can be used to trace assets once a confiscation order is made.

These changes will help to ensure that confiscation orders are satisfied in full. This is already the case with many lower-value orders. With higher-value orders, criminals have greater capacity to hide away their assets, including overseas beyond the effective reach of UK law enforcement agencies. To further incentivise payment of these high-end confiscation orders, Part 1 of the Bill also significantly increases default sentences for non-payments.

The maximum default sentences for orders between £500,000 and £1 million will increase from five to seven years’ imprisonment, while for orders over £1 million the maximum sentence will increase from 10 to 14 years. We are also ending automatic early release at the halfway point for orders over £10 million. In such cases, offenders could now find themselves spending up to 14 years in prison, rather than just five years as is currently the case. We will keep these changes under close review and, if more needs to be done to incentivise payment, the Bill includes powers to make further changes to the default sentencing framework.

Cybercrime poses a major threat to our national security. Although now almost a quarter of a century old, the offences in the Computer Misuse Act 1990—

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among other things, criminalising hacking and denial of service attacks—have stood the test of time. However, given the potential far-reaching consequences of a cyberattack on critical national infrastructure, the 1990 Act currently provides for woefully inadequate penalties.

The current Section 3 offence, which criminalises unauthorised acts with intent to impair the operation of a computer, has a maximum sentence of 10 years’ imprisonment. Given that cyberattacks could lead to loss of life or significant damage to the economy or the environment, this punishment simply does not fit the crime. The new offence, provided for in Part 2, carries a maximum sentence of life imprisonment in cases involving loss of life, serious illness or injury, or serious damage to national security, and a maximum sentence of 14 years’ imprisonment for damage to the environment or the economy.

Part 3 of the Bill provides for a new offence of participation in an organised crime group. The offence of conspiracy has served and continues to serve us well, but with conspiracy the prosecution needs to be able to prove, to the criminal standard, that there was an intentional agreement between two or more parties to commit a criminal act. Not all members of an organised crime group will be direct parties to such an agreement. Organised crime groups use a range of associates to help them in their criminal enterprises. There will be members of a group who facilitate the commission of offences, perhaps by delivering packages, renting a warehouse or writing a contract, but without asking incriminating questions that would make it possible to pin on them a charge of conspiracy. The new participation offence will address that gap in the criminal law, affording prosecutors an additional charging option in such cases. The new offence will attract a maximum penalty of five years’ imprisonment.

Part 3 also improves the operation of serious crime prevention orders and gang injunctions. This reflects the strand of the serious and organised crime strategy aimed at preventing people becoming or remaining engaged in serious and organised crime. These civil orders have proved an effective means of achieving this by placing prohibitions and requirements on the subject of an order or injunction, breach of which is a criminal offence or contempt of court. With the benefit of a number of years’ experience of their operation, we have identified a series of enhancements that can usefully be made to these civil orders.

The Scottish Government, too, have recognised the value of serious crime prevention orders, and so the Bill extends their application to Scotland—another example of the value of the union in securing the collective security of the four nations of the United Kingdom.

In relation to gang injunctions, Part 3 recognises the increasing interrelationship between urban gangs and organised crime. This is particularly evident in the case of the illegal drugs trade. We are therefore extending the circumstances in which a gang injunction may be obtained to include involvement in gang-related drug-dealing activities.

Part 4 deals with another aspect of the illegal drugs trade.

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Lord Richard (Lab): Before the noble Lord leaves Part 3, I wonder whether he can help me on one issue that slightly bothers me—that is, why we have to move beyond the existing law of conspiracy into this new offence. As I understand it, he is saying that if someone did something unconnected with the actual offence, such as delivering a package—if it were connected, you could charge conspiracy—then you would be able to bring him within the scope of the criminal law and charge him with this offence. Would you not still have to prove some kind of criminal intent? If the man is delivering a package and does not know that a crime is going to be committed, he has not committed the new crime any more than he is part of a conspiracy. On the other hand, if he knows that it is in pursuance of some crime, I would have thought the existing law of conspiracy would probably be enough.

Lord Taylor of Holbeach: My Lords, it is our view that it is not enough. I thank the noble Lord for raising the question. We will obviously have the chance to debate this at length in Committee but, in essence, the conspiracy charge requires a direct relationship between the organised crime activity and the individual involved in the conspiracy. The noble Lord is wise enough to know that, in the real world, there are individuals who have managed so far to distance themselves sufficiently from the conspiracy but have, none the less, been aiding serious criminal activity through their deeds.

I am sure we will have good debates on this. It is not about people who unwittingly find themselves on the wrong side of the law in this regard. It is about those who are either knowingly Nelsonian in their view of what is going on or who deliberately choose to aid a client or some other person in this way. I hope the noble Lord will understand why this is in the Bill and why it is an important extension of the conspiracy provision which will, of course, continue to exist.

I come to Part 4, which deals with another aspect of the illegal drugs trade. Illegal drugs, especially cocaine, will be adulterated with other chemical substances to increase their volume and, therefore, the profits of drug dealers. Many drug-cutting agents—that is what they are called—including the most common, such as benzocaine, are far from harmless. Part 4 confers bespoke powers on the National Crime Agency, the Border Force and the police to seize and detain suspected cutting agents. They will then be able to make an application to the court for the seized substances to be forfeited and destroyed. By tackling the supply of drug-cutting agents we can reduce the availability of illegal drugs on our streets, which will, in turn, drive up the street price and help to reduce drug use as part of the Government’s wider drug strategy.

Part 5 takes us into the different, but no less important, territory of child protection. The noble and learned Baroness, Lady Butler-Sloss, who is not in her place today, has been among those who have argued that the offence of child cruelty lacks the necessary clarity when it comes to tackling psychological harm to children. I would be the first to admit that a law which, in its current form, was drafted more than 80 years ago uses rather archaic language in places. None the less—this

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view is shared by the Crown Prosecution Service—the offence in Section 1 of the Children and Young Persons Act 1933 remains fit for purpose. However, we accept that it would benefit from making explicit that the offence deals with both physical and psychological harm, and Clause 62 amends Section 1 of the 1933 Act to this end.

This part also makes it an offence to possess an item providing advice or guidance about abusing children sexually. It beggars belief that such so-called paedophile manuals are circulating on the internet. However, sadly and worryingly, the Child Exploitation and Online Protection Command of the National Crime Agency—CEOP—has uncovered a number of such documents. The new possession offence provided for in Clause 63 will carry a maximum penalty of three years’ imprisonment.

The third child protection issue dealt with in Part 5 is a strengthening of the Female Genital Mutilation Act 2003 and its Scottish equivalent. I know that this is an issue in which a number of noble Lords take an interest. Clearly, the challenges presented by the widespread practice of FGM cannot be dealt with by legislation alone. After all, FGM has already been an offence in this country for nearly 30 years. However, it is important that we change the law where necessary. The CPS has identified cases that it was unable to pursue because the extraterritorial jurisdiction provided for under the 2003 Act was limited to UK nationals and non-UK nationals permanently resident in this country. Clause 64 extends this to cover habitual residents. We are looking at other changes in the law in this area, which we hope will help to secure more prosecutions, including whether the victims of FGM should be afforded the protection of anonymity during the criminal process in the same way as rape victims.

Clause 65 deals with another aspect of extraterritorial jurisdiction, in this case in respect of certain offences under the Terrorism Act 2006. My noble friend Lord Marlesford, who I am delighted is in his place, is among those who have rightly highlighted the threat posed to the United Kingdom by “foreign fighters” returning from the conflict in Syria. The amendments made to the Terrorism Act 2006 will enable persons who, while overseas, have undertaken preparations for terrorist acts or who have trained for terrorism more generally, to be prosecuted on their return to the UK. While our priority remains to dissuade people from travelling to Syria or other areas of conflict in the first place, we must ensure that the legislation we have in place to tackle individuals engaging in terrorism overseas is as robust as it can be.

We all share the anguish over the humanitarian disaster that has befallen Syria but there are perhaps better ways to help the people there than by travelling to the region; for example, by donating to registered aid charities. Even those travelling for well intentioned humanitarian reasons are exposing themselves to serious risks, including being targeted by terrorist groups. Those who engage in terrorism or acts preparatory to terrorism while abroad should be in no doubt about the action we are prepared to take to protect the public, should they return to this jurisdiction.

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Finally, Clause 66 ensures that two draft EU Council decisions relating to serious crime are subject to proper parliamentary scrutiny and approval before UK Ministers can vote for them in Brussels. The first of these draft decisions relates to the continuation of a funding programme to protect the euro from counterfeiting. The second draft decision will repeal a now-expired programme to fund measures to protect critical infrastructure against terrorist attacks.

Under this Government we have, by establishing the National Crime Agency and revitalising the regional organised crime units, put in place the necessary capacity and capabilities to tackle serious and organised crime. However, as those who engage in organised crime evolve and adapt to the countermeasures we take, we in turn must adapt and respond. The Bill will ensure that the NCA and other law enforcement agencies have the powers they need to continue effectively and relentlessly to pursue and disrupt those who engage in serious and organised crime. I commend the Bill to the House and I beg to move.

3.30 pm

Baroness Smith of Basildon (Lab): My Lords, I thank the Minister for his explanation of the Bill. There is always a sense of déjà vu about Home Office legislation. I have been in your Lordships’ House now for just four years. This is the ninth Bill and the fifth that I have spoken on from the Front Bench in that short time. That is a lot of legislation. But it is legislation that is concerned with some of the most serious and important issues facing society and a priority of any government—the safety and security of citizens and the ability of government to play a part in reducing crime and taking action against criminals including, with specific reference to this Bill, those criminals engaged in serious and organised crime.

Any approach to the criminal law has of course to deal with four aspects: the offence and the detail of exactly what that offence is; the appropriate penalties for breaking the law; any defence or mitigation; and, perhaps most crucially, the enforcement and resources available to prosecute—nothing brings the law into disrepute more quickly than erratic enforcement or non-enforcement. I use as an example the sensible law of not using a hand-held mobile phone while driving. We all know that that is dangerous but, as we watch somebody negotiating a roundabout with the steering wheel in one hand and a mobile phone in the other, we know—and, worse, they know—the probability of them being prosecuted is very low. More serious are the current problems with enforcement of legislation on asset recovery and the proceeds of crime. We welcome measures to address current failures, but improvement in legislation cannot make up for the lack of enforcement. There must be a determined commitment to effective policing and enforcement, without which any laws are meaningless.

The issues raised in this Bill are important and we have called for action to better protect children, to tackle cybercrime and to ensure that criminal gangs are not allowed to stash their ill-gotten gains to pick them up later. We will scrutinise these proposals for their workability and for effective enforcement and

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there is cross-party support on many of these issues. We want to ensure that legislation is as robust as possible.

On Part 1 of the Bill, on proceeds of crime, it is clear that confiscation orders are not working, given that criminals currently get to keep £99.74 in every £100. In 2012-13, there were 6,392 confiscation orders seeking the return of £380 million from a total criminal pot of £1.6 billion, but eventually only £133 million was recovered. The cost of recovering those ill-gotten gains is extremely high. The estimate from the National Audit Office is that investigation, prosecution and enforcement costs 76p in every £1 collected. The value to the Government from that initial £1.6 billion is just £31 million, and only 2% of offenders paid in full. The National Audit Office has identified that the amount collected and the number of confiscation and restraint orders have fallen in recent years. That is a seriously worrying trend. Restraint orders freeze assets so that they cannot be hidden abroad. They have fallen by 27% under this Government. There are a number of reasons why that is the case and I hope that the Government will be willing to engage with us to address the practical and legal reasons to improve implementation.

Noble Lords will be aware that we have called for the ending of early release from sentences for those who have failed to pay back amounts specified in confiscation orders. Currently, automatic release is available at the halfway point. I am pleased to see that ended in the Bill, but that is proposed only for orders involving amounts over £10 million. The Minister in his comments said that there are order-making powers that would enable that level to be lowered, so perhaps we can revisit in Committee whether that is the appropriate level at which to end these early releases. We have also called for the law to make it easier for prosecutors to freeze suspects’ assets quickly and close loopholes that allow criminals to hide stolen assets, sometimes with family members. We welcome the Government's response to that and again we will examine the detail in Committee.

I know that the Minister shares my concerns that some previous measures introduced in the Crime and Courts Act on the proceeds of crime and the National Crime Agency still do not apply to Northern Ireland because the Government failed to get a legislative consent Motion. Obviously, the measures applying to Scotland and Northern Ireland in this Bill relating to criminal assets also require an LCM, without which there would be a massive loophole. I urge that past mistakes are not repeated and every effort is taken to ensure that no part of the UK can become a haven for those hiding their criminal gains from justice. Finally on this issue, we think that it would be appropriate if the additional revenue that is raised is ploughed back into the communities on issues such as neighbourhood policing and criminal justice and we would welcome a commitment from the Minister that the Government would also support this.

Part 2 deals with computer misuse. The phenomenal technical changes we have seen in recent years bring new threats to individuals, businesses and national security. When we debated the Government’s flawed policy of opting out of all EU police and criminal

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justice measures, cybercrime was an issue we highlighted where international and European-wide co-operation is absolutely essential. The extension of extraterritorial jurisdiction is welcome because, as the Minister knows and as we know, such crimes know no boundaries. We have some questions about the practical application and how decisions will be taken between UK-based prosecutions and extradition, but the measures proposed have our broad support.

Part 3 deals with organised, serious and gang-related crime. Clause 41 seeks to reach all those who actively support or benefit from criminal activity, including those whose specific role appears to be legitimate. Many criminal gangs include corrupt and complicit professionals who use their expertise and skills to seek to evade the law. Obviously, we want to ensure that those who are genuinely innocently caught up in illegal activity are protected. For example, would housing associations, local authorities or private landlords who, despite their best efforts, find their property being used by a drug gang be liable for prosecution? Perhaps this could be seen as the “Al Capone” clause. In a sleazy, corrupt criminal prohibition era, Al Capone and his crime empire were responsible not just for bootlegging, but for prostitution, smuggling, murder and dirty politics, where voters and politicians were threatened or bought and feared for their lives. Some noble Lords will recall the television series with Robert Stack—I am far too young. Despite the best efforts of Eliot Ness and his “Untouchables”, Al Capone was never brought to justice for his worst crimes but for tax evasion, for which he went to prison and his empire was dismantled. If only he had had a better accountant.

The activities of serious and organised crime gangs today are more modern but equally evil and exploit the weak, poor and vulnerable: drug trafficking, people trafficking for slavery and prostitution, organised illegal immigration, extreme and violent pornography. The human misery caused by such gangs is almost limitless and defies imagination. If we are serious about really tackling such evil, we agree that the law should be able to reach all those involved in and benefiting from such activity. Obviously, anyone, including qualified professionals, who knowingly profit from criminal activities should be held legally accountable for their actions. We want to ensure that it is effective in practice. It would be interesting and very useful to have information from the Serious Fraud Office and the police as to how many and what kind of cases they feel they have been unable to pursue because the law is inadequate.

Part 4 concerns the seizure and forfeiture of drug-cutting agents. We do not oppose these clauses, but I question whether they are adequate. We are all aware of the human misery and suffering caused by drugs and the criminal industry behind their sale. In the information provided, I was struck by the number and amount of seizures of chemicals used as cutting agents by drug sellers. Adulterating a hard drug, such as cocaine, with a significantly cheaper compound increases profit and, of course, the dangers for the drug user. However, the seizures to date seem to be minimal. Only 75 seizures, of around 2 tonnes in total, is clearly a fraction of the amount being used. Therefore, although obviously worthwhile, is this the right target and approach,

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or should it be extended? The Minister said in his introduction it would lead to higher prices and therefore decrease consumption. I am not clear that higher drug prices necessarily reduce consumption by an equivalent amount, so it would be useful to have the evidence for that. I was surprised not to see some measures in the Bill to tackle so-called legal highs. So many young people are being conned into believing something is safe, as the law has not caught up with that particular compound, and a number have already paid with their lives.

Part 5 deals with the protection of children. There is a unity of purpose in your Lordships’ House to do whatever we can to protect children and young people from harm of any kind. We welcome the fact that the Bill seeks to make it explicit that, under the Children and Young Persons Act 1933, emotional cruelty likely to cause psychological harm is an offence. Noble Lords will be aware that there remains some concern from charities and organisations representing children’s interests that, because cruelty to a child must be wilful to be considered an offence, this can be misunderstood. It would be helpful to explore this point further in Committee to ensure that the law is as effective as it possibly can be.

I listened to what the noble Lord said about manuals on child sexual abuse and paedophilia. Like other noble Lords, I am horrified to know that such things exist. Obviously, they should be banned. It serves to highlight the inadequacy of current legislation in protecting children online and from what I understand is called the dark web. It is alarming that online abuse is increasing while the number of arrests is falling. Over the past three years we have seen a 60% decline in the number of arrests made by CEOP although referrals rose by 14% in the last year. The Minister may recall that, in our debates on the Crime and Courts Bill, we raised concerns about CEOP being part of the National Crime Agency rather than remaining a separate specialist and dedicated body. We welcomed the concessions that the Government made and would welcome further information about the operation of CEOP within the NCA. As I stated earlier, having the right structures and resources for enforcement is as important as any legislation.

In the anti-social behaviour Bill earlier this year, the Government accepted our arguments on new amendments to provide some extra tools to the police and local authorities to tackle child grooming, and introduced a new measure on Report. Obviously, there is still more to be done and I hope that the noble Lord will be willing, in the same spirit of co-operation, to consider this matter further; for example, the strengthening of child abduction warning orders may be an issue that we could examine in Committee. There may indeed be other areas we can look at.

The Government have made clear their commitment to opposing female genital mutilation at home and abroad. Like the noble Lord, we regret the lack of prosecutions to date. FGM is a barbaric evil and we support these new measures to tackle it. Noble Lords will be as shocked as I am that in London alone nearly 4,000 girls and women have been treated for FGM

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since 2009. Again, I reinforce the need for proactive and determined enforcement and prevention, including sex and relationship education in all schools.

On the final part of the Bill, we support measures to tackle terrorism at home and abroad and we will examine the detail on this. I am grateful to the Minister for his explanation and we look forward to our further deliberations on this Bill in Committee.

3.41 pm

Baroness Hamwee (LD): My Lords, I confess that I am at a loss. For once, I am not struggling to ask apparently innocent questions as a painful way of masking criticism. My scepticism has also been confounded because so often legislation is added to the statute book when the offences have already been defined and measures have been put in place. I am not a fan of using legislation to promote a message, but the Bill does seem to be about filling lacunae, and I congratulate the Minister and the Home Office on that.

That does, however, make it rather difficult to find a thread running through it on which to base my remarks today. No doubt a theme common to all the issues covered will be—as has already been said—that legislation cannot do everything and that good practice is fundamental. I know that the House will do what it does so well, which is to focus on workability. I am very glad that the Bill has started at this end and I thank the Minister for his introduction.

My noble friend Lord Thomas of Gresford talked quite a lot about tracking down and recovering the proceeds of crime in the context of legal aid. He kept saying, “Just find the money”. The Bill cannot assist investigative skills and I am aware from another part of the legal forest—matrimonial work—of the resourcefulness that some people use to conceal their assets. HMRC is pretty good at ferreting out where assets have been hidden.

I am a bit uneasy about using taxation as a sanction—perhaps this is the “Al Capone” clause. I am not entirely sure that I understand the tax provisions. Is there to be a tax assessment when the source of the income cannot be identified but comes under the spotlight as perhaps coming from criminal assets—my civil liberties antennae are twitching slightly—or are we levying a percentage at the marginal rate on income rather than on the whole of the income-producing asset? We will ask questions in Committee. While my antennae are still active, I note from the material I read from the Home Office that the Crown Court must determine whether the defendant has a “criminal lifestyle” and is to apply the balance of probabilities in assessing whether there is “general criminal conduct”. I can see some questions arising from this.

I welcome the priority given to the victim surcharge and compensation, and the use of the assets. I was reminded by a case study in the material provided by the Home Office—for which I and other noble Lords will be grateful—that we are not dealing with the proceeds of crime in a vacuum: it is the crime itself which we seek to reduce or eradicate. That case study could also be a case study from material for the Modern Slavery Bill. It is the underlying crime that

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makes these provisions so important. But that will not stop us examining, for instance, the Secretary of State’s powers to amend provisions regarding default sentences; and Clause 14, which allows the Secretary of State to amend primary legislation. I was guilty of the perhaps unworthy thought that parliamentary counsel had simply not had enough time to produce the substantive provisions which the Government have in mind. If not, do the Government intend to produce a draft order so that we can understand what they have in mind here?

As for organised crime groups, the current money-laundering rules are a burden on professionals, and Part 1 might add to that. I am aware that another policy aim of the Government, of course, is deregulation. We have had briefings, from the Law Society and the Institute of Chartered Accountants in particular, about Clause 41 and organised crime groups. Prejudice is often expressed against fat cat lawyers. There may be some, although many are very lean, and there may be some lawyers and accountants who are not straight, and I do not defend them. However, there seems to be a lot of justified concern about how this clause will work. We are told that there has been no prior consultation, so the most important question for now is what plans the Home Office has to engage in discussion with the professional bodies. Everyone has an interest in this provision working well.

Before I received the briefings, I was concerned about things such as the burden of proof, serious crime prevention orders as prevention without a conviction, and the definitions. Like the noble Baroness, Lady Smith, I thought that the meaning of the term “helping” in the context of criminal activities could be taken to absurd extremes. Perhaps the question about gangs is how successful the gang injunctions have been so far and their relationship with joint enterprise. A criminal group seems to be three-plus, so more are needed for joint enterprise. Only 25 of the 33 local authorities who are in the Ending Gang and Youth Violence programme responded to the data request. Is this an indication that they are under enormous pressure and are underresourced, because this is described as a “potentially beneficial tool”? Intriguingly, we are told that gangs can disappear from the radar in one area and reappear in another. Do the Government intend to produce guidance on what enables those people to be identified as being the same gang? We will deal with what constitutes harm to children. This made me wonder whether gang-related violence included psychological harm. I am thinking of vulnerable youngsters—particularly how girls may be used by gangs, becoming part of them but being victims of them at the same time.

I am delighted that the noble Baroness, Lady Meacher, is taking part in this debate, because she always has such sensible things to say about drugs policy and drugs legislation. I accept the need to deal with cutting agents; their use is pernicious in several different ways. The responses to the Government’s consultation on this mentioned legal clarity, but I can see evidential issues raising their heads as well. I wondered about the equipment used for cutting agents. Do they—I am sorry, I cannot now avoid the pun—warrant attention as well as the agents themselves?

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As regards children, the House sometimes has a tendency to divide into sort of a Bill half full/Bill half empty approach. It is very likely that the part of the Bill on the protection of children will attract proposed additions, as it gives an opportunity for colleagues to pursue their often very justified concerns. My noble friend Lady Walmsley, who has been unable to change her arrangements for this afternoon to be here, already has an amendment, agreed by the Public Bill Office to be in scope, that would make it a duty for people who work in regulated activities with children or vulnerable adults and who suspect abuse to report it to the local authority.

The change to the Children and Young Persons Act 1933 to spell out that harm includes psychological harm is the result of sustained work by many NGOs and the Private Member’s Bill from my honourable friend the Member for Ceredigion. It is blindingly obvious to us in the year 2014, but the same issue of what is meant by harm arises in other legislation. It has been addressed recently in the context of domestic violence but outside statute. In that and other contexts, I confess that I am concerned that psychological and emotional damage may be regarded as excluded by implication, since it is to be explicitly included in this case.

Noble Lords will have received briefings from children’s organisations on other possible changes to the 1933 Act. I find quite persuasive the argument that the term “wilful” to describe actions is very narrow. Again, I wonder about guidance and the CPS’s view. It is important that the language that is used carries its natural meaning, so that it is easily used by practitioners.

There is also the issue of the age bracket for victims, possibly taking it up to 18. I doubt that anyone who has had more than fleeting contact with teenagers could argue that they are more resilient than younger children, as has been said. I, too, was horrified by what I read in our briefing about the paedophile manual. I was surprised that it needs specific provision, but for the moment I will just ask whether internet service providers have been consulted on Schedule 3.

All the legislation in the world will not deal with the deeper-rooted cultural issues surrounding female genital mutilation. The Government, I know, are very well aware of that and have been very determined in their approach. I count the Member for Hornsey and Wood Green as a real friend and a long-standing colleague as well as an honourable friend, and I can vouch for the activity that she, among many others, has undertaken.

I end with a positive story. I was at a meeting on Thursday, in the margins of the Global Summit on Ending Sexual Violence in Conflict, with a number of Members of other parliaments. A representative from Portugal recounted a tale of the boyfriend of a potential victim protesting and campaigning against the abuse. In a gloomy subject, I thought that was a cheering report.

There may be a common thread to this: that practice is important and that being alert to what technical changes are indeed necessary to implement existing policy is something on which we can profitably use our time.

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3.55 pm

Lord Hope of Craighead (CB): My Lords, this is not an easy Bill to read, as I think the noble Baroness, Lady Hamwee, was indicating at the beginning of her speech, as so much of it is concerned with updating existing legislation in those fields with which it deals. Updating is really the thread that runs right through the Bill, from start to finish. In itself, I suggest that is to be welcomed. In each of those fields, experience has shown us that there are gaps that need to be filled. We know that where there are gaps in legislation of this kind, they will be exploited. Where there is room for evasion, it will be exploited, too. All the areas of law with which the Bill is concerned are vulnerable to being undermined in this way or are lacking in the power that comes with the increased sentences to which the Minister referred.

Serious and organised criminals—those who deal in illegal drugs, attack our computer systems or are engaged in paedophilia or terrorism—are not going to go away. Their presence in our community is a constant threat. We need to keep our lines of attack and defences up to date, so it is not surprising that the statutes with which this Bill deals are in need of amendment, although some were enacted not all that long ago, and that new measures are required in support of those we already have. Speaking broadly, the Bill deserves our warm support.

I am especially grateful to the Minister for the information pack that we were given the other day to help us through these provisions. It contains fact sheets and Keeling schedules, which are of course extremely useful, but they do not tell one everything. I was troubled by the fact that on my first reading, it seemed that the provisions in Clause 3(3)(b) and Clause 24(3), amending Sections 33 and 183 of POCA, which deal with appeals against the making of confiscation orders, provided appellants with an unqualified right of appeal to the Supreme Court. Everyone else has to go through a permission process before an appeal can be heard there and, as a result, appeals in the Supreme Court are available only if a point of general importance is involved and the decision appealed against raises a point that ought to be considered by the Supreme Court. On my first reading of this part of the Bill, I asked myself: why should the appeals in this field be any different?

The answer was provided by two of the Supreme Court’s judicial assistants but they did not find it in the Keeling schedules because it is to be found in delegated legislation set out in two orders made by the Secretary of State in 2003, details of which I need not give. However, the result is that the appeals referred to in these clauses are subject to the ordinary rule, although that is not apparent on first reading. I am greatly relieved that that is so and I hope that my researchers have provided me with the correct answer.

Some of the provisions, although at first sight well meaning, may require careful scrutiny. One of them is Clause 41 in Part 3, to which the noble Baroness referred and the noble Lord, Lord Richard, drew our attention. In response to what the noble Lord said, it seems to me that the way in which the issue of organised crime is being approached in Clause 41 is, in principle,

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the right one. He mentioned the alternative of using the law of conspiracy to deal with matters of this kind. When I was serving as a Lord of Appeal in Ordinary I was involved in a case where a conspiracy charge was used in connection with money-laundering. In the days when it was used, the rules for the framing of counts in indictment were subject to what is called the duplicity rule. It was very complicated and I shall not trouble to explain it but the point was that conspiracy was used to get around the difficulty. When the appeal reached us, we had to quash the conviction because the evidence necessary to prove conspiracy was not there.

It is quite a complicated area of law. Although, as a Scots lawyer, I hesitate to make suggestions for the English, I think conspiracy should be avoided if it is possible to do so. The great advantage of Clause 41 is that it goes straight to the heart of what it is seeking to attack and describes it in simple language. To that extent, I welcome Clause 41 and hope that the noble Lord feels able to defend it. As the noble Baroness, Lady Hamwee, indicated, there is concern that some well meaning, law-abiding professionals might be brought within the reach of the clause when what they are doing is providing advice and intelligence to the authorities. They might feel deterred from doing this—from getting too close to the people that Clause 41 is talking about—in case they become drawn into some kind of criminal prosecution. It is all about how the offence is defined in Clause 41(2) and the way the defence in Clause 41(8) is worded. It is not necessary to say more about this, but it is a clause that will require detailed examination in Committee.

I welcome the opportunity that the provision in Clause 62—particularly Clause 62(2), which deals with the meaning of “unnecessary suffering”—gives us to debate the issue. I say that against the background of a case of domestic violence, Yemshaw, in which my noble and learned friend Lord Brown of Eaton-under-Heywood and I were involved some years ago. In that case, the House was asked to consider whether the phrase “domestic violence” in the Housing Act 1996 to describe circumstances in which it would not be reasonable to expect a person to live with someone else in the same accommodation, required there to be, and be limited to, some form of physical contact. There had been two Court of Appeal decisions which said precisely that. Although the noble and learned Lord, Lord Brown, hesitated somewhat, we were persuaded in Yemshaw that, because of the way in which people look at these matters, it would be unreasonable to confine domestic violence to physical contact. So many cases of that kind are the product of intimidation and psychological abuse, which is equally untenable and makes it equally difficult for someone to live with someone else. Psychological harm was, therefore, said to be included within “domestic violence”.

The concern is that, if the issue of unnecessary suffering, as defined in Section 1 of the Children and Young Persons Act 1933, were to come to court against the background of Yemshaw, the court might feel that it should extend it to psychological as well as physical damage. There will be differing views in the House as to whether this would be desirable. My only point is to welcome the opportunity that we shall have to debate

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it. I mention Yemshaw because it indicates that this is an area of law that others are working on, as well as us. It is eminently desirable that Parliament should clear this up, rather than have the matter debated, with perhaps less range of discussion, in the courts. That is to be welcomed, whatever the end result may be.

There are one or two other matters that I should like to mention, particularly in relation to Scotland. This is the result of studying the Bill with the Scottish jurisdiction in mind. I have given the Minister notice and I hope he will at least be able to give me some indication in his reply as to what the answer would be. The first relates to Clause 63, which deals with the paedophile manual. The curious feature of that provision is that, according to the wording of the clause, it extends only to England, Wales and Northern Ireland, and not to Scotland. That is confirmed by Clause 69(2)(c), which deals with the extent of the Bill and makes it absolutely plain that it does not extend to Scotland. I take it that it is no accident that it is drafted in this way.

That seems at first sight to give rise to a very strange situation. We all live on the same island, as we keep hearing in the debates about the referendum. You could imagine that if someone who lived in Carlisle or Berwick-upon-Tweed wished to get access to one of these manuals, he would have to drive only a short distance to Gretna Green or Eyemouth and find someone who was in possession of one. He could consult it and then go back to Carlisle or Berwick-upon-Tweed and do whatever the manual had taught him to do. It is very puzzling that this does not extend to Scotland. So far as my researches go, there is no equivalent provision, at least in these terms; I discussed this question this morning with a criminal law practitioner and he said that to me. It is true that a recent measure in Scotland, the Sexual Offences (Scotland) Act 2009, covers a lot of ground and it may be that the Scottish Government are reluctant to expand on it at this stage, but some explanation is required as to why this measure, which seems eminently desirable, is confined to south of the border and why it appears to be assumed that people in Scotland will not be engaging in the same malpractice.

The second point is rather more technical. It relates to the provision in Schedule 1(23), which provides that the civil standard of proof will apply to any proceedings in the High Court of Justiciary or a sheriff court relating to serious crime prevention orders. I suggest that the clause may be too widely drawn. It is mirrored to an extent by the provisions relating to England and Wales about the standard of proof, but the point that emerges from a detailed reading of these provisions is that the civil standard applies to proceedings in the High Court, which in England is mainly a civil court and deals with the making or amendment of these orders, whereas the criminal standard applies to proceedings brought in the Crown Court, which is the equivalent of the High Court of Justiciary or the sheriff exercising his criminal jurisdiction. It is not immediately clear to me why the civil standard should be expressed so broadly in relation to criminal jurisdiction in Scotland when it is carefully separated out in the equivalent English provision.

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The names of the courts are bit confusing but I am sure that the draftsmen understand that the High Court of Justiciary is entirely criminal—that is its jurisdiction exclusively—and that it is therefore right to be very careful about altering the standard of proof there. The point is that there could be proceedings under these orders that relate to serious crimes—an attempt to pervert the course of justice in relation to these orders, for example—which one surely would have thought could be prosecuted according to the criminal standard. Again, this matter requires some explanation. It may be that those north of the border have some guidance to give us as to what the answer should be.

My final point is a quibble about drafting. I am reminded that there used to be a practice when I first came into this House in the middle of the 1990s; from the Cross Benches you would see Lord Simon of Glaisdale and one or two others sitting looking at Bills to find bits of grammar or drafting that they could draw to the House’s attention. Usually this was a bit tongue in cheek, but sometimes there were bits that really were worth mentioning.

There is one minor complaint that I should like to voice about what one finds in Clauses 57(1) and 58(3). Clause 57(1) deals with the jurisdiction in the magistrates’ court, but magistrates’ courts do not sit in Scotland. In Clause 58(3) we find that appeals, apparently from a magistrates’ court, may be taken in Scotland to the sheriff principal, who sits only in Scotland. Again, if one delves around in the Bill, the answer is to be found later on: in Clause 61(4) we find that a reference to the magistrates’ court is to be read as a reference to the sheriff. However, it is rather untidy to have to go there to interpret magistrates’ courts, when in Clause 58 it is all set out in full for you so that you have the proper English court and this court in the same clause. It would have been better either to group all the Scottish bits in Clauses 57 and 58, or to leave Clause 58 as one that apparently dealt only with England, and then clear it all up as is apparently done in Clause 61. That is the kind of point that Lord Simon would have raised. He would never have dreamt of putting down an amendment to deal with it but would have thought it proper to draw the House’s attention to it, and I should like to do that.

4.10 pm

The Lord Bishop of Derby: My Lords, I very much welcome this Bill and think it is timely and appropriate. I congratulate the noble Lord, Lord Taylor, and his colleagues at the Home Office on pointing us in this direction. Noble Lords will have seen in the briefing that it is based on a strategy described as the four Ps: Pursue, Prevent, Protect and Prepare. For somebody like me, such laboured alliteration might indicate an overambitious sermon and I want to check the level of the ambition and what might be appropriate.

This Bill, timely and appropriate as it is, is really about Pursue—the pursuit of justice and criminals, and I fully support the proposals. I am especially pleased to see proposals that were endorsed by the Joint Committee on the draft Modern Slavery Bill—on which I had the privilege to serve—about longer sentences

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for those who default on confiscation orders and lowering the standard of proof for restraint orders freezing defendants’ assets. These measures will not just attack criminals but help victims, which is a crucial part of this legislation. Of course, I support the tougher pursuit of those who inflict FGM and child cruelty, targeting of manuals for grooming and abusing children, and measures against cybercrime and gangs. However, the question is how we are going to deliver that kind of agenda in a realistic way, as the noble Baroness, Lady Hamwee, said.

This Bill is a first step but we have to remember that organised crime is a huge and expanding industry and flourishes by targeting the most vulnerable people. We are dealing not just with highly sophisticated corrupt systems, but with the brutal abuse of vulnerable people. I have experienced that in my work with modern slavery and drug addicts. As we pursue the crime and the criminal we have to ask how we are going to have an effective response when this criminality is an expanding industry. What does that say about the world we live in and the world we are trying to legislate for? It is very topical at the moment to talk about values and the buzzwords, I understand, are freedom, tolerance and democracy. In 1861, the Bishop of Oxford, who sat on these Benches, gave a famous speech in Salisbury where he recognised the welcome advance of values such as freedom, tolerance and democracy but said there would be a danger that such freedom and spaciousness would give more room for what he called “sin and selfishness” and what the noble Baroness, Lady Smith, called “evil”.

This modern crime is not just about technical ingenuity; it is about people choosing the freedom to abuse others and society. We are already aware of cynicism about politics but I think what we are looking at here is an energetic alternative set of values being pursued vigorously in our midst with alternative ways of valuing people and society and doing economics. The alternatives are all based on putting the self first and abusing vulnerable people. That is a very dangerous state of affairs for a nation. The Government have a key role, not just to pursue criminals but to challenge this abusive, expanding lifestyle that reaps such rewards for so many people across all sectors of society. St Paul called it living according to the flesh—that is, according to the most immediate desires and not having a wider hinterland about other people and their needs and especially the vulnerable. This industry is expanding at a time when many of us are preparing to commemorate the First World War. As we collect stories and witness to that war I am struck by the heroic self-sacrifice for others that was involved—something people recognise and value and want to appreciate today.

We have these two streams in our society. The Government have a role not just in pursuing the crime but in looking at the culture and, therefore, at how we can manage pursuing the crime and supporting the victims. I therefore invite the Minister to say something not just about the pursuit but about Prevent, Protect and Prepare; we may come up with different alliteration by the end of the debate. The Home Secretary makes a strong and proper appeal for what she calls “strong partnerships” to deal with this complex culture and

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this deep challenge. Can the Minister say something about the partnerships that he sees needing to be developed, by working not just through the Home Office but with the Department for Education, the Department for Communities and Local Government and the faith and voluntary sector? Unless we work at that part of the agenda too, we can make all the laws we like but the detection, pursuit and support of victims will still depend on so many other factors. We need to take those into account to make our law-making as effective as possible.


4.16 pm

Lord Henley (Con): My Lords, I start by offering my thanks to my noble friend Lord Taylor for his useful introduction to the Bill and for the amount of information with which he has provided us in the run-up to this Second Reading; the meetings he has held with all parts of the House on a party basis and an all-party basis; and the various documents he has provided, including the Explanatory Notes and Explanatory Memorandum—even, dare I say it, the impact assessments, although I found them fairly obscure. I am trying to work out which of the five or six impact assessments relates to which part of the Bill, but that is somewhat difficult. No doubt my noble friend will assist us in that at some later stage.

Some years ago, when I sat where the noble Baroness, Lady Smith of Basildon, is sitting now, dealing with both justice and home affairs in opposition, I criticised the Home Office and other departments on a number of occasions for this vast legislative steamroller that seemed to churn out Bill after Bill. The noble Baroness said that she had seen nine Bills come from the Home Office in the four years that she had been in this House. I simply cannot remember how many we had claimed we had seen between 1997 and 2010: certainly our figure never quite agreed with the figure of the Government of the day. However, we all had our own views that there were too many.

I then ended up in the Home Office and had to rather change my tune. However, it is important with any Bill—particularly as there is a great deal of all-party support for this Bill, as the noble Baroness made clear—that we look carefully at how much of this legislation is genuinely necessary and how much might just be what one might call legislation for legislation’s sake: making it look as though you are doing something even though there are perfectly adequate laws already in place dealing with this or that matter. This was touched on by the noble Lord, Lord Richard; I will get to that when I come to that part of the Bill.

It is important that we in this House go through the Bill very carefully in Committee, to make sure that we know exactly what is there and why, and make sure that that degree of cross-party support does not prevent us from giving the Bill a genuinely critical look.

In my few opening remarks, I also thank my noble friend for providing us with a Keeling schedule. As the noble and learned Lord, Lord Hope, made clear, it is not an easy Bill to read, as it makes a whole series of amendments to other bits of legislation. I was therefore certainly grateful for that Keeling schedule, and am sure that other noble Lords will be as well.

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I want to touch on Parts 1, 2 and 3 of the Bill: “Proceeds of Crime”, “Computer Misuse” and “Organised, Serious and Gang-related Crime”. I will touch upon them in light of the few opening remarks I made about the importance of scrutinising the Bill to ensure that it is not that legislative steamroller that churns out legislation merely for the sake of legislation.

We start with the amendments to POCA in Part 1. It is now 12 years since the Proceeds of Crime Act 2002 was brought in by the previous Government. Despite the figures given by the noble Baroness, it has had some successes in recovering the proceeds of crime from criminals, albeit at some expense. It has continued to have further successes since 2010 under the Conservative coalition Government. My noble friend was quite right to say that, broadly speaking, it is the right framework within which to work. However, some improvements, which my noble friend set out, need to be made to it. Further powers also need to be taken to make sure that we can pursue criminals and that they cannot hide their money—for example with spouses, or abroad—and to make it harder for them to use it. I think we would like to know what estimates my noble friend and his colleagues in the Home Office have made so far about just what the improvements will do: how much more is it likely to bring in, what further sums are we likely to see, and have any estimates been made of what sort of success it will have?

Secondly, I will say a word or two about Part 2, on “Computer Misuse”, which covers Sections 37 to—I forget where it goes to. Starting with Section 37, how much of that is new legislation? How much of the various offences that are enunciated in new Section 3ZA are already covered by existing legislation? I would have thought that many of them would be, but again, I would welcome assurances from my noble friend that those could be covered; some of them, for example, could be covered quite simply by the Theft Act. I would welcome comments from my noble friend on that Section. Having said that, I am grateful that in Section 39 he seeks to extend the territoriality of the Bill to make sure that we can get people who are abroad. That is a good measure, and I am sure that the House will welcome it.

The third section I will touch on is Part 3: “Organised, Serious and Gang-related Crime”. Again, I listened very carefully to what the noble Lord, Lord Richard, said about using existing laws relating to conspiracy. My noble friend responded to that and explained exactly why that was needed. That was questioned by the noble Lord, Lord Richard, but was then defended by the noble and learned Lord, Lord Hope of Craighead—and I very much welcome what he said. However, the noble and learned Lord went on to suggest that it could bring in some innocent professionals. I agree with him that we need to look very carefully at that matter in Committee, and we will need some carefully drafted probing amendments on it to allow my noble friend to respond when we get to that stage.

As I implied, I was going to be very brief in my response and wanted to deal only with those three Sections. The rest of the Bill is equally important, and I am sure that the House will give proper and adequate coverage to it. I am very grateful for the assurances I

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was given in private on that, but again, I would be grateful if my noble friend could repeat them when he comes to wind up. I am grateful that he thought that we would need at least four days in Committee to deal with the Bill. It is a big Bill that needs proper scrutiny, and the mere fact that we have a degree of cross-party support should not prevent us giving it that cross-party support. Having said that, I offer my support to my noble friend, but I hope that he will allow us to be constructively critical on some occasions.

4.24 pm

Lord Harris of Haringey (Lab): My Lords, I begin by declaring my interests. I advise Lockheed Martin and UK Broadband, which have interests in the policing sector. I chair the National Trading Standards Board and I co-chair the All-Party Group on Policing.

Following on from the comments of the noble Lord, Lord Henley, while we have to look at this Bill, there is a danger—the noble Lord, Lord Henley, called it “legislation for legislation’s sake”—that some of the content of the Bills we receive in this Session is being rather oversold. The Bills are no doubt worthy, but they do not necessarily address the major issues that they purport to address.

I suppose that is symptomatic of this stage of a fixed-term Parliament, with an ill-matched coalition whose members loathe each other and can barely mask their disagreements—that is just the Lib Dems. On the Conservative side of the coalition of course, we know there is perfect harmony. Indeed, not a scintilla of difference can be detected between the Home Secretary and the Secretary of State for Education. Indeed, they are so united that they did not have to go through the charade, like Nick Clegg and Vince Cable, of having a pint together, which incidentally sets a very poor example for hard-working families of drinking during the working day. Mrs May and Mr Gove have none the less to go through a series of rituals: a ritual exchange of written apologies, the ritual firing of a special adviser or two—not that firing a special adviser does anything to solve the problems. One has only to look at the front page of today’s Timesto realise that. Now all is sweetness and light between the two departments. The briefing campaign is apparently over. Or is it? I detect a guerrilla war going on between the advisers of the different government departments concerned. We have all seen the Home Office briefing on the Bill. It tells us that the purpose of the Bill is,

“to ensure we can continue to effectively and relentlessly pursue”.

Take that, Mr Gove: see how we have split the infinitive to show how pointless is your crusade for back-to-basics education. This is the level to which infighting in the Government has gone.

The Bill is the usual ragbag of Home Office measures: it must not contain anything that is too frightening for the Lib Dem portion of the coalition, but none the less everything within it has to be built up as more significant than perhaps it is. As usual, some of it sounds as though it has not been thought out as well as it might be. I was much taken by the briefing that we have no doubt all received from the Institute of Chartered Accountants, which says that the part targeting crooked lawyers and accountants will not make

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prosecutions easier because it sets a higher standard of proof than Labour’s Proceeds of Crime Act. What is worse, it will have a series of unintended consequences and potentially choke off valuable intelligence to help the police target serious crime. These are no doubt important issues that we will need to look at in your Lordships’ House.

The Bill is designed to make it easier to recover criminal assets. That is welcome, although there seems to be an element of catch-up on Labour’s proposals to do the same. However, we need to be satisfied that the Bill will have the effect of closing the loopholes that allow criminals to hide their assets with family members or overseas. Is that going to be achieved by the changes before us?

There is another problem here. I refer to the extent to which the agencies involved feel it is appropriate to invest the sometimes quite substantial resources required to pursue POCA proceedings. For many of those agencies, too high a proportion of what is seized, often after quite a protracted legal process, is retained by the Treasury rather than being available for the agency concerned to reinvest in crime fighting. Will the Bill do anything to remedy that? I certainly hope that it is something that the Home Office will look at, perhaps with Treasury colleagues, to see whether more of those resources can be ploughed back to improve the quality of the work that is done in fighting serious and organised crime.

In that context, one of the groups that the National Trading Standards Board funds is the illegal money lending team for England, based in Birmingham. It works hard to recover POCA money from the loan sharks who prey on the vulnerable. It uses the receipts it obtains, after the Treasury has had its take, to plough back into local communities on programmes of education about money management and how to avoid loan sharks. That is a very useful and positive thing that can be done. A trading standards department in north Yorkshire puts great emphasis on working right the way through the prosecution process. It starts with obtaining material and evidence that can be used in Proceeds of Crime Act proceedings at a later stage and works right the way through the investigation. That enables it to plough some of the money it recovers back into further investigations of those who scam the public. I hope that the Minister will tell us what more is being done to try to ensure that more of the resources obtained from criminals can be invested in crime fighting.

Part 5 of the Bill deals with the protection of children and strengthens and clarifies the law on psychological suffering and abuse. I am pleased to see those measures. It follows the lead of my late right honourable friend Paul Goggins, who campaigned on this issue. The Bill also creates a new offence of possession of material on advice on grooming children. That is all well and good, but is that the most fundamental issue in terms of protecting children and young people on the internet? The noble Baroness, Lady Howe of Idlicote, who is not in her place, has been doggedly pressing ahead with her Private Member’s Bill in successive Sessions of Parliament on precisely this issue and I find it surprising that the Government have not been more positive about its provisions.

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Noble Lords who were present at Question Time today will know that I referred to the benefits of the Government doing more to sponsor proper identity assurance on the internet with robust age verification. That would not only protect children but would also do much to combat crime and fraud. Individuals would have the certainty of knowing who they were dealing with, young people would be prevented from accessing unsuitable material and older people would be prevented from accessing sites that were intended to be the exclusive domain of children.

Much of the Bill is about improving the effectiveness of the National Crime Agency, an organisation which is barely half a year old. It is interesting that perhaps some of these issues were not addressed when we first had the legislation which created the National Crime Agency. Some matters are still not being resolved. We still do not know how the work of the National Crime Agency can be extended to Northern Ireland. The issue of whether the National Crime Agency should take on board counterterrorism remains unresolved. My view is that that would be an unwise move to make, particularly given that the National Crime Agency is still so new. Why leave this hanging open? Would it not be better to put that to bed one way or the other, sooner rather than later?

There is also the question of the proper governance and accountability of the National Crime Agency. We have had the Home Secretary giving her instruction that the National Crime Agency, almost before it had started work, should investigate historic child abuse in north Wales. Where in the Bill are questions of accountability of the National Crime Agency being addressed?

Last week, the Daily Telegraph told us that a quarter of criminals tracked by the National Crime Agency and the Security Service have gone off the radar since the Snowden revelations and that hundreds of drug lords have gone to ground after being alerted to methods of surveillance. The noble Lord will recall that two years ago the Home Office warned of the need to address changes in communications data management by telecoms providers, but nothing has been done in the intervening period. This Bill could have provided an opportunity to address that very real problem. Communications data are vital for all sorts of investigations. They are used by trading standards in carrying out the consumer protection enforcement that I talked about, they were critical in the investigation of the Soham murders and they are often critical in many kidnap cases.

I accept that issues around the privacy of communications and metadata are not easy—they need a proper public debate. I have also been one of the first to acknowledge that the previous Government mishandled the public debate when the opportunity for it arose a few years ago. However, what we have had in the past four years has been a total absence of debate and a total absence of leadership from the Government in trying to resolve these issues. The consequence is that there is now a real danger that our ability to fight organised crime is being seriously corroded.

I started my speech by talking about coalition dysfunctionality, but the willy-waving of the Education

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Secretary and the Home Secretary—I acknowledge that the term may be inappropriate for your Lordships’ House and certainly inappropriate in applying it to Mrs May—is a side-show compared with the failure of the two halves of the coalition over the five years of this Parliament to address the diminishing capacity of our police forces, including the NCA, to access the communications data that they need to fight crime effectively and to protect the public. Therefore, while the Bill contains many worthy elements, it frankly does not address some of the most serious problems that exist in dealing with organised crime.

4.37 pm

Lord Elystan-Morgan (CB): My Lords, in dealing with the Second Reading of yet another miscellaneous provisions criminal Bill, there is a sneaking temptation to have a tour d’horizon of the contents of the Bill and, indeed, to repeat a point that I have sought to make probably half a dozen times over the past eight or nine years—that is, that the legislative fecundity of the Home Office for such Bills should in some way or another be curbed. It may be that the only humane way of doing that is to have a written constitution with a Bill of Rights and to see to it that the Home Office is limited to no more than one Bill of that nature per annum.

On this occasion, however, I want to take a totally different course and concentrate completely on one single matter in the Bill: Clause 62. As the House knows—it has already been referred to by noble and learned Lords and by the noble Baroness—that clause deals with two amendments to Section 1 of the Children and Young Persons Act 1933. The effects are limited. One is to see to it that that which may well have been implicit in the original wording of the measure is now made explicit—namely, that it should refer not only to physical but to non-physical consequences. The situation was somewhat complicated in 1981 when this House dealt with the matter of Sheppard. In relation to the situation of children, it held that Section 1 of the 1933 Act should not in any way deal with spiritual, educational, moral or emotional matters but only with physical ones. That decision, arrived at by this House, was a heavy gloss, which has now been undone by including psychological harm with physical harm. We will, no doubt, discuss whether the term “psychological harm” is wide enough to incorporate all the other, non-physical, matters at a later stage.

The other part of the amendment deals with the exclusion of Victorian verbiage which describes certain situations that are illustrative of child cruelty, and it is entirely proper to take that attitude. However, although these two amendments are entirely meritorious and proper, they fall very far short of what the aims of a progressive society should be, on the issue of child neglect, in the 21st century. As the House well knows, and as many people better qualified than me can testify, it is one of the most massive problems of the present day. Neglect leading to cruelty is often at least as serious as physical or sexual abuse of a child. In many ways, it may be more sinister as it is more difficult to identify and reveal. It is very broad in its possibilities and may range from failure to give a child

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the food and clothing it requires to the other extreme of failure to show a child the love and affection that one would wish every child to receive.

Many people are extremely well versed and have campaigned in this field. In particular, I note the contribution of the noble and learned Baroness, Lady Butler-Sloss, in this matter. Many come to the conclusion that as many as 10% of our children suffer some form of substantial neglect. We should look at this provision against that template. We are not ungrateful to the Government for their initiative, but it falls far short of what is necessary in the circumstances. I appreciate that this is Second Reading but, since I am challenging the Government’s fundamental approach, it is right to argue at this stage that a totally fresh approach should be taken. Why is this? The 1933 Act is 80 years old but its provisions are much older as they were taken, word for word, from Section 37 of the Poor Law Amendment Act 1868.

That Act was passed in very special circumstances, to deal with a sect called the Peculiar People. They were very genuine people who were very firm in their religious beliefs, to the effect that if a person—particularly a child—was ill, one should not for a moment think of a cure or of approaching a doctor, or giving medicine. Instead, one should resort to prayer. If the child died, so be it: it was the act of God. To go contrary to this was seen as utterly blasphemous. As a result, many persons charged with manslaughter on the death of a child were found not guilty because of their innate—but utterly unreasonable—genuineness. It was for that purpose that that particular provision in Section 37 of the 1868 Act was passed. Much of that verbiage is still in Section 1(1) and (2) of the 1933 Act.

I am not arguing that just because there is Victorian verbiage one should get rid of it. I have lived as a lawyer for many years with the Offences against the Person Act 1861. I suspect that many generations of lawyers still to come will do exactly the same. It is a splendid Act and most of its provisions work really well. In this case, however, we are dealing with the cobwebs of a Victorian attitude which is utterly irrelevant and inappropriate for the problems that we seek to beat in relation to this matter. For example, even if the amendment is carried—and I have no doubt that it will be—the whole concept of child neglect and cruelty will turn on the question of whether the person who is perpetrating such conduct is doing it wilfully. To many lay people, magistrates, police officers and jurors, “wilful” means something that a person does deliberately. Conceptually, however, “neglect” is essentially a matter of omission. Lawyers understand the difference, but intelligent lay people do not find it so easy to make the distinction.

In addition, there are five ways in which the offence can be committed. First, we have a wide range of offences of assault, including common assault and sexual assault. Nothing needs to be said about that. Secondly, we have “ill treatment”, but apparently nowhere is it defined in the law, in statute or elsewhere, comprehensively. Thirdly, we have neglect, but that begs the whole question of the difficulties that we are talking about. Fourthly, there is abandonment. I suggest that that part of the law has fallen into desuetude: the

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last prosecution was in 1957. Fifthly, there is exposure. That has fallen into even greater desuetude: the last prosecution was in 1910.

These matters have to be tackled. I salute the efforts of Action for Children and other similar progressive bodies in this regard. A Bill has been drafted which concentrates essentially on defining the offence as maltreatment—which is an excellent expression—but it also refers to maltreatment that either causes or raises the danger of causing significant harm. What is the beauty of that? Significant harm is the essential core and kernel of harming a child under the Children Act 1989. Therefore the suggestion made by progressive societies, and the measure introduced in the House of Commons a year ago by Mr Mark Williams, the MP for Ceredigion, who is also my MP, would mean that for the first time the civil law and the criminal law would look at child cruelty in exactly the same way and according to the same definitions. Social workers and police officers would read from the same brief.

There is much more that one could deliberate on, but this is not the time to do it; we will have a full opportunity for that in the coming months. Knowing that the Minister is resilient to such appeals, I urge him to consider carefully that this is a glorious opportunity to erase completely a great deal of cobwebbed complication and that we can start afresh. Let us define this all-important aspect of the criminal law in such a way that it best serves the needs of our children. I give the Minister notice that we shall plumb the illimitable depths of his good will in this matter, and I very much trust that we shall not find him wanting.

4.50 pm

Lord Sherbourne of Didsbury (Con): My Lords, as has already been said, we have had a succession of Acts of Parliament tackling crime, terrorism and policing over many years. This Bill, which I welcome, is the latest. But there is a good reason for all this legislation. The challenges that we face are continually changing. Organised crime is becoming ever more sophisticated in the way that the criminals operate, the methods that they use, the way that they organise themselves and the way that they hide their ill-gotten gains. It is a constant battle. In the case of cybercrime, we are in a never ending technological race to keep up with the cybercriminals as they use ever more skilful and devious hardware and software and the dark side of the internet. We have to keep up with them, especially as we realise just how extensive these threats are to our commerce, industry, infrastructure, financial security, people’s personal lives, the environment and, most important of all, our national security.

We know that white-collar crime can be an ally, sometimes unwittingly, of organised crime, and organised criminals can and do use professional advisers to facilitate their criminal activity. On the separate subject of protecting children, the Bill at last updates the law, long overdue, by recognising that the harm done to children can be not only physical but psychological and, as has been said by several noble Lords, we are in debt to those doughty campaigners both in Parliament and outside who have campaigned hard on this issue.

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The Bill is also necessary because of developments in the Middle East and the threats posed by British citizens who go overseas to engage in terrorism, particularly to Syria, then return to the UK radicalised still further and dangerous.

All these developments have propelled this Bill before Parliament. I suspect that in an ever changing world with new developments and new threats, there will before long be a need for yet further legislation, although I cannot see the face of my noble friend the Minister when I say that. As all of us in this House know, it is fine passing a Bill but we always have to ask whether the authorities have the resources, capability and expertise to implement its provisions. We will want to look at this very carefully as the Bill is scrutinised in Committee. The noble Baroness, Lady Smith, referred in her speech to the importance of enforcement.

On practicality, a number of specific points concern me and I will briefly single out two. In seeking to prosecute alleged rogue professionals—accountants and lawyers, for example—for acting as accomplices to organised crime, the Bill would require the prosecution only to show that the accused had reasonable grounds for believing that they were helping a criminal group. How would that work in practice? It might well—and certainly should—encourage professionals to delve more deeply into the affairs of some of their more suspect clients, but it may have quite the opposite effect of “best not to know”. How would that work in court? With whom would the burden of proof lie; the prosecution or defence?

A second area concerns the extension of the Terrorism Act 2006. I confess to being no expert in this area but, when we come to examine Clause 65 in Committee, I at least will find it helpful to know whether it is realistic to believe that sufficient evidence can be brought to court to demonstrate that an accused has been preparing or training overseas for engaging in terrorism. Having said that, I assure the Minister and the noble Lord, Lord Marlesford, who is not in his place, that I certainly believe the Bill’s objective here is good and important, but it would be helpful to know how realistic it is.

Overall, I welcome the Bill and believe that it will, in all its different aspects, help create a safer society for our fellow citizens.

4.55 pm

Lord Paddick (LD): My Lords, despite the glowing reference that the noble Lord, Lord Harris of Haringey, gave the coalition Government, as the Minister has already said, crime is significantly down since this Government came to power. Indeed, in many crime categories it is at the lowest levels ever recorded. However, as the Minister also said, serious and organised crime remains a very serious problem, not least because it is an area of crime that many members of the public are less concerned about—certainly less concerned than they are about personal crime such as burglary, robbery and anti-social behaviour—so there is the potential that police and crime commissioners, perhaps focusing on being re-elected, may be disinclined to champion it.

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I would like to speak—it says here “briefly”, but I do not want to raise expectations beyond what I can deliver—on two aspects of the Bill. From my experience as an operational police officer, I very much welcome the enhancements to the Proceeds of Crime Act. The noble Baroness, Lady Smith of Basildon, rightly pointed out the very small proportion of proceeds of crime that are confiscated, which to me merely demonstrates how difficult it is and how necessary are the changes. It is a sad fact that those involved in serious and organised crime can amass great wealth from their criminal activity. It is also a sad fact that they can therefore afford to employ the best lawyers to help them move their assets beyond reach. Establishing third-party claims at an earlier stage in the process, as the Bill proposes, should help prevent spurious third-party claims further down the line and increase the success in confiscating such assets.

While some criminals in the past have felt that spending additional time in prison is better than giving up their criminal assets, the increase in default sentences—including having to serve the full term of up to a maximum of 14 years in the case of default on a confiscation order over £10 million—will provide a real incentive for them to pay up. It is important that criminals know that the confiscation order remains in force, even if the default sentence is served—as does any compliance order, such as a ban on overseas travel to prevent assets being disposed of.

Of particular benefit are the powers in Part 5 of the Proceeds of Crime Act by which criminal assets can be recovered where no criminal conviction has been possible, either because the criminal has remained remote from the commission of the crime from which they have benefited or because they have fled overseas. In my experience, this is particularly the case with drug dealers who run distribution networks between importation and street dealers. They are very often careful to ensure that they never handle the drugs themselves. It is difficult, however, for these people to demonstrate how they acquired such wealth through legitimate means. Applications for seizure in these cases are made to the High Court.

As has already been mentioned, Clause 41 will also assist in creating a new offence of helping an organised crime group carry out criminal activities: for example, putting in place infrastructure to assist in the commission of crime.

I also welcome the change to Section 1 of the Children and Young Persons Act 1933, in particular the clarification that cruelty likely to cause psychological suffering or harm is covered by Section 1, despite the fact that the Government believe that the other limbs of the offence, in particular ill-treatment, can relate to non-physical cruelty. This follows the work done by—and the Private Member’s Bill of—Mark Williams MP in the other place.

Having said that, women’s groups I have been working with are concerned about two aspects of this change. The first is that it could result in the criminalisation of non-abusing parents who are themselves the victims of coercion, control and psychological abuse. I will unpack that a bit. There have been cases where women, mainly, have been convicted of physical child neglect because

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they did not prevent the abuse carried out by an abusive partner, even though the partner was exercising coercive control over them as well as abusing the child. In these cases the woman could be said to be almost powerless to protect the child because of the control her partner had over her. With the extension of cruelty to cover non-physical cruelty, there is the potential for such injustices to increase unless there is also movement in recognising psychological abuse and coercive control in domestic violence against partners.

That brings me to the second point, which is that the Government have not taken the opportunity in this Bill to address what many women’s groups believe to be a legislative gap in domestic violence law to deal with psychological abuse and coercive control. Indeed, psychological abuse and coercive control, not individual incidents of physical violence, are the essence of domestic violence.

My noble friend the Minister will recall a recent debate in the House in which he reassured us that legislation to criminalise psychological abuse and coercive control was not necessary because it was already covered by existing legislation. The Government seem to be saying the same thing in this Bill—that non-physical cruelty directed at children is already covered by existing legislation—but none the less they are prepared to make this explicit by changes to Section 1 of the Children and Young Persons Act. Can the Minister explain why the Government are prepared to make the change in the case of child abuse but are not prepared to make a similar change in relation to domestic violence against partners, particularly now that they are prepared to set a similar precedent in relation to child abuse?

5.03 pm

Lord Bourne of Aberystwyth (Con): My Lords, it is a great pleasure to follow my noble friend Lord Paddick and to reassure the noble Lord, Lord Harris of Haringey, of the coalition’s unity of purpose on the Serious Crime Bill.

The point has already been made, not least by the noble Baroness, Lady Smith of Basildon, that we always seem to be getting Home Office measures. It is true that, like taxes and motorway cones, Home Office bills are always with us. That said, I am very much in agreement with my noble friend Lord Sherbourne of Didsbury in thinking that this measure is more than justified. Because of changing circumstances we have to keep ahead of many of the challenges of the age: computer misuse and drug-cutting present fresh challenges, while female genital mutilation and training for terrorism are issues that have come up on a regular basis in your Lordships’ House. Therefore, a response to them is needed.

As has been said, the cost of serious and organised crime is massive. The economic cost alone is £24 billion per year. More serious are the social consequences, and there are of course also issues of national and international security, which this measure tackles.

On the specific provisions of the Bill, it is right to look at ways of ensuring that the Proceeds of Crime Act 2002 is tightened. As has been rightly said, there have been issues with collecting the proceeds of crime

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when money is sheltered outside the jurisdiction or is allegedly in the hands of third parties. This legislation will tackle some of those issues. Clearly we need to look seriously at this in Committee, but it is a measure that is to be welcomed because we need to revisit the working of the 2002 Act.

Secondly, there are the provisions on computer misuse. As I said, the fresh circumstances of using computers to commit large-scale cybercrime demand fresh legislation. Lengthening sentences to 14 years if the damage is economic or environmental, and the maximum to a life sentence if the damage is to life, limb or national security, seems right. It is necessary to prove intention—mens rea is either intent or recklessness—and that is entirely right. Again, this will no doubt be scrutinised as we go through Committee.

Much has been said about the participation in crime element and introducing a new crime to sit alongside conspiracy. The noble Lord, Lord Richard, raised this initially to ask why it was necessary. I listened carefully to what the noble and learned Lord, Lord Hope of Craighead, said, but there are differences. This approaches it in a different way, in terms of not just the conduct that will be caught but also the standard of proof, which is lower in relation to this participation. The person must have reasonable cause to suspect and only reasonable cause to suspect. There is also a difference in the maximum sentence, which is five years, while conspiracy carries, I think, potentially a life sentence.

So there are material differences here and this is again necessary because of changed circumstances. It is largely, though not exclusively, directed at professional assistance for crime. It is not limited to lawyers or accountants, but certainly they would be caught within the ambit of what is to be looked at. I am sure that alongside other noble Lords I will be scrutinising this carefully in Committee, but it seems that there is a case to be made for looking at this differently from the classic conspiracy of people, perhaps around a table, discussing a crime. This is a different type of conduct that is to be caught.

The Bill also widens the categories of serious crime prevention orders that can be made. They will, of course, be made by the judiciary, so there is a limitation and a safeguard here, which is to be welcomed. A pre-emptive strike to prevent a crime is surely a sensible way of proceeding.

I mentioned that the part of the Bill concerning drug-cutting agents is required because of changes in conduct. We have to react to it and try to stay ahead of the game to ensure that we can tackle criminality in this way. Using substances that are not themselves illegal, but which are used to bulk out illegal drugs, ensures that criminals maximise their profit. To seize these substances, the authorities will have to get a warrant to enter the premises legally and they will need another warrant to destroy the substances. Given the dangers of drugs to individuals, which are well rehearsed, and the massive profits that are being made at the expense of, usually, young people, this is more than justified.

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I accept that this is a bit of a hotchpotch of a Bill, but that should not detract from our looking at each part and saying, “Is it to be welcomed? Does it tackle criminality and is it necessary?”. I welcome the clarification about child neglect. I listened carefully to the points made by the noble Lord, Lord Elystan-Morgan, and there are serious issues that we will need to look at in Committee. However, we should welcome clarification to tackle psychological as well as physical harm. I do not think that anybody could argue against making it illegal to possess paedophile manuals, or against extending the extraterritorial reach of prosecutions in relation to female genital mutilation, something that has been raised repeatedly in your Lordships’ House. I also very much welcome measures to tackle the overseas element of training for terrorism—again, a fresh challenge and therefore necessitating fresh legislation.

Obviously, we will be reviewing and scrutinising the legislation line by line as it goes through your Lordships’ House, but the broad sweep of the Bill is something that we should welcome very much indeed.

5.10 pm

Lord Brown of Eaton-under-Heywood (CB): My Lords, I confess to having had some doubts as to whether I was justified in speaking on this Bill, given that I am so clear as to its essential merit and, indeed, so bereft of any constructive and useful criticisms. But given, too, how critical I suspect that I, and no doubt many others, am going to have to be when we shortly debate the Criminal Justice and Courts Bill, which we understand will be leaving the other House tomorrow, I thought it perhaps appropriate to express my support for the Government in what they are doing at least in the present Bill. My doubts arose afresh when I saw that the noble and learned Lord, Lord Hope of Craighead, was down to speak before me. Indeed, I passed him a note saying, “Will you leave me anything to say?”. It may be that your Lordships shortly come to doubt the correctness of his response.

In all events, I confine myself to brief comments on just four aspects of the Bill. The first is the proceeds of crime provisions, which of course are at the very heart of the Bill and indeed form the largest part of it. These provisions I certainly applaud. Indeed, anything that strengthens our legislation, designed to strip criminals of their ill gotten gains, is greatly to be welcomed, and Part 1 of the Bill should undoubtedly plug a number of gaps that have been found in the present confiscatory scheme. I particularly welcome Clause 11, which will enable restraint orders—that is to say, orders freezing assets and preventing their dissipation pending any eventual confiscation—in future to be made as soon as there are reasonable grounds to suspect that the person is guilty of an offence, rather than, which is presently the position, only when there is reasonable cause to believe. Of course, belief is the higher test. The future test is the lower test: reasonable grounds to suspect that a person has benefited from his criminal conduct. I add only that, for my part, the essential value of all this confiscatory scheme is impoverishing and therefore deters the criminal rather than enriches the state, so I am perhaps less worried than the noble Baroness, Lady Smith, as to the comparatively high cost of enforcement.

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Secondly, I also welcome Clause 41, the clause to which the noble Lord, Lord Richard, spoke at a very early stage during the Minister’s opening of this debate. Clause 41 creates an offence of participating in the criminal activities of an organised crime group, and thereby gives wider effect than the United Kingdom has hitherto given to Article 5 of the United Nations Convention against Transnational Organised Crime. Up to now, as has been explained, we have relied largely on the law of conspiracy in order to target those involved in some shape or form in organised crime groups, but this of course requires proof of the person’s agreement to carry out the criminal scheme.

This new offence is designed to target those who merely support organised crime—in other words, those who provide, in one way or other, services that facilitate criminal capability and activity but without those assisters being directly, so to speak, involved in the criminal plan itself. Henceforth, such people are going to be guilty of an offence if they turn a blind eye when, in the language of Clause 41(2), they know or have reasonable grounds to suspect—again, the lower test and not, as I think the noble Lord, Lord Sherbourne, suggested a moment ago, the higher test of belief—that they are in fact helping,

“an organised crime group to carry on criminal activities”.

This is designed not least to discourage corrupt and complicit professionals who provide services to organised crime groups. I do not for a moment suggest that more than a very tiny minority of professionals lend themselves to this, and it is therefore perhaps unsurprising that the representative bodies for both solicitors and accountants, to which I think the noble Baroness, Lady Hamwee, referred, have expressed certain concerns about this new provision. For my part, however, these concerns are misplaced. Rather, it seems to me that this new provision may be expected to reinforce the integrity of these professionals.

Thirdly, I want to say a word about Clause 62, about which many others have spoken. It amends Section 1 of the Children and Young Persons Act 1933, which criminalises cruelty to those under 16. The amendment expressly provides that is an offence to cause suffering or injury to health whether that,

“is of a physical or a psychological nature”.

Personally, and I think in common with the Minister, I doubt whether it is strictly necessary. Even under the existing wording, it seems to me reasonably clear that causing a child unnecessary psychological suffering would constitute an offence, but plainly it makes sense to update this now rather archaic language and to spell out in terms that causing psychological harm is also explicitly criminalised. Indeed, it has come to be recognised that, as the noble Lord, Lord Elystan-Morgan, made plain, these sorts of cases can indeed be some of the very worst cases of child cruelty.

As the noble and learned Lord, Lord Hope, has already observed, this proposed amendment is entirely consonant with a decision that we came to in the Supreme Court in a case called Yemshaw some three years ago, in which we held that the term “domestic violence” is indeed apt to include not merely physical and intimidatory behaviour but other forms of abuse, including, above all, psychological abuse that gives

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rise to the risk of harm. One wonders perhaps whether the noble Lord, Lord Paddick, might have overlooked that case in what he said as to how domestic violence is not currently apt to include it. It is true that in that particular statutory context—the urgent need to be rehoused as homeless—I doubted the correctness of the view of the majority, although I did not in the event dissent from it. In the context of outlawing child cruelty, however, it seems to me unarguably the right approach.

The final clause that I would mention, again with total approval, is Clause 64, which widens our extraterritorial jurisdiction under the Female Genital Mutilation Act 2003. Someone who, even outside the United Kingdom, mutilates a girl’s genitalia or aids, abets, counsels or procures a girl to do so herself commits an offence that is triable here, but under the present law only if they are UK nationals or permanent UK residents. The proposed amendment will extend such a territorial jurisdiction to those who are habitually resident here—in other words, even those who are not permanently resident here. Parenthetically, in Section 2, there is an offence of aiding and abetting the girl or woman to mutilate herself. I believe this is the only offence, apart from that of assisting suicide, which we shall no doubt discuss later, where the act of assisting and not the substantive act itself is criminalised.

I add my voice to those of the large number of noble Lords who have already spoken to express how appalling the continuing operation of this vile practice is among certain communities and how astonishing the failure of effective law enforcement procedures to stamp it out. Eight years ago, sitting with the noble and learned Lord, Lord Hope, in the Appellate Committee of this House in a case called Fornah v Secretary of State for the Home Department, we granted asylum to a 15 year-old girl from Sierra Leone because of her fear that, if returned, she would be subject to FGM. There are plainly communities still here who, as in Sierra Leone, regard FGM as an acceptable, and indeed desirable, initiation rite into adulthood. How dreadful that is. If a victim were to arrive at, say, a school or hospital with gunshot wounds, the police would be speedily alerted. So it should be with those who on examination can be seen to have been the victims of this abhorrent practice.

I wish to make a final comment on the Bill as a whole. So plain does it seem that the provisions of this Bill are essentially well directed that I find it difficult to understand why no fewer than four days have been allotted to it in Committee. As other noble Lords have already made clear, certain provisions are going to need careful, detailed consideration, but if this Bill needs four days, goodness knows how many days the Criminal Justice and Courts Bill is going to need when it comes. That, however, is for the future. As far as this Bill is concerned, so far, so good.

5.23 pm

Lord Wasserman (Con): My Lords, I welcome this Bill. It is the latest instalment of an ambitious programme of work which my right honourable friend the Home Secretary set herself in the summer of 2010, shortly after taking office. Her goal was clear and unequivocal—to

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make this country a safer place in which to work, bring up children, grow old, study and visit. Much of that programme has already been delivered. Local policing is no longer the responsibility of the so-called tripartite cabal of ACPO, the Home Office and the Association of Police Authorities. In its place there are now directly elected local police and crime commissioners, who oversee the local police force as part of their wider responsibilities for community safety. The College of Policing has brought together the Police Federation, the Police Superintendents’ Association and ACPO into a single body, under an independent chairman of integrity, to professionalise policing across the whole of England and Wales. The inspectorate has been strengthened and modernised, so that its work is seen to be serving the public rather than Home Office Ministers and officials.

The Bill is largely the product of another of my right honourable friend’s innovations, the National Crime Agency. The significance of the NCA as a crime-fighting organisation, headed by a professional crime fighter and reporting directly to the Home Secretary, is not often appreciated by the general public. Indeed, most home affairs commentators in the media do not appreciate the fact that before this Government the police department of the Home Office, in which I am proud to have served for many years, devoted most of its efforts to dealing with local crime and anti-social behaviour, although we did not use that term in those days. Serious and organised crime was something that Home Office Ministers were happy to leave to individual chief constables to tackle, working independently or through ACPO. For a short period between April 2006 and October last year, the Serious and Organised Crime Agency also played an important role in this field, but it reported to a board that was largely independent of government and headed by the chairman without any professional policing experience. As my right honourable friend said recently in an important speech delivered to the Royal United Services Institute,

“when I became Home Secretary four years ago the lack of a response”,

to the threat of serious and organised crime,

“both in policy terms and operational terms—was glaring. While the centre was bossy, clumsy and interfering when it came to local policing, it was weak, timid and sometimes entirely absent when it came to serious and organised crime”.

How different things are now. A few weeks ago, on 28 May, I attended a reception at the Foreign and Commonwealth Office at which the heads of the national law enforcement agencies of the UK, the USA, New Zealand, Canada and Australia—known collectively as the “Five Eyes” law enforcement group—were guests of the NCA. Keith Bristow, the NCA director, chairs this group of top crime fighters. I used the opportunity to chat to the director of the FBI and the commissioner of the Royal Canadian Mounted Police. Both these top law enforcement officials were fulsome in their praise for the work that the NCA was doing internationally, particularly the way that it was bringing law enforcement partners together to help to pursue serious and organised criminals and frustrate their activities around the globe.

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The Bill gives the NCA and other UK law enforcement agencies some of the tools that they need to meet their objectives of keeping us safe. Most of its provisions, as many noble Lords have already mentioned, are entirely uncontroversial, and I very much hope that your Lordships will welcome them, as I do. Many provisions are years overdue, some by decades. For example, take the provisions concerning the misuse of computers. The Act that we are being asked to amend in Part 2 of the Bill received Royal Assent in 1990, which is equivalent in IT years to the Dark Ages. The owners of many of the largest and most profitable IT businesses in the world were still in nappies in the 1990s; a fair proportion had probably not yet been conceived. Similarly overdue are the provisions to update the definition of a gang, to deal with the cutting agents that are used to increase the profitability of the illicit drug trade, or to amend the Children and Young Persons Act 1933 to recognise that child abuse may be psychological as well as physical. All these provisions should have been on our statute book years ago, and I very much hope that your Lordships will ensure that they get there urgently.

While I warmly welcome those provisions that are in the Bill, I want to mention two matters that are not included but have already been mentioned by the noble Lord, Lord Harris of Haringey. The first relates to the data retention directive of the European Union. On 8 April this year, a few months ago, at the European Court of Justice in Luxembourg there was a decision that will have very damaging consequences for our fight against serious and organised crime. The court struck down the data retention directive of the European Union.

As your Lordships will know, the UK’s domestic data retention regulations are based on the EU directive and are the legal basis for the obligations we place on communications service providers to retain communications data for 12 months. Without these regulations, providers have no reason to retain the data and, given the current concern post-Snowden, do not very much want to retain it unless they are compelled to do so. I am aware that the Government are trying hard to find a way forward on this issue but I urge them to act boldly and courageously in tackling it. Communications data is now used in more than 90% of serious and organised crime investigations and is vital in bringing serious criminals to justice and protecting the most vulnerable among us.

There is one other matter relating to serious and organised crime that does not need legislation but which I hope will be tackled as a result of our interest in this subject. It is the question of the responsibility for counterterrorism. In that speech by the Home Secretary to which I referred earlier, she said,

“in 2010, I made sure serious and organised crime was included in the National Security Strategy … I am aware that it is a relatively new way of thinking to consider organised crime a national security threat, and I know that some people … may argue that individually none of these crimes represents a national security threat. But when you consider their collective effect, when you add up the total cost to society, when you realise the huge numbers of victims who suffer from organised crime, there is no doubt in my mind that it is a very real threat to our national security”.

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It is obvious from many of the provisions in this Bill, particularly in Part 2 dealing with computer misuse, that when we talk about the threat of serious and organised crime we are talking about a threat that extends to serious damage to critical national infrastructure and therefore to our national security.

Given that the Home Secretary herself recognises that serious and organised crime encompasses terrorism and national security, is it not time to bring together in one organisation responsibility for both counterterrorism and serious and organised crime? In particular, responsibility for counterterrorism should be brought more directly under the Home Secretary rather than leaving it as it is today under the Metropolitan Police, which is accountable to the Mayor of London, and ACPO, which is accountable to itself. Given that the NCA has made a great start in the few months in which it has been fully operational and the respect it is accorded by the FBI, the RCMP and other leading law enforcement agencies around the world, I urge the Government to act on this matter and to transfer responsibility from the Mayor of London to the NCA—in effect to the Home Secretary—before the end of this Parliament so that the new arrangements are in place before the next mayoral elections in May 2016. It seems to me that the last thing we want is for the security of this nation to become a party-political issue in a local election. With this plea I commend this Bill to the House.

5.34 pm

Lord Howarth of Newport (Lab): My Lords, when I picked up my copy of the Timeson 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

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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

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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, a welfare state that fails to help people to turn their lives around?

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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”.

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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.

5.49 pm

Baroness Meacher (CB): My Lords, I applaud some aspects of the Serious Crime Bill and raise some questions in relation to others. It gives me great pleasure to follow the powerful and challenging contribution of the noble Lord, Lord Howarth.