Serious Crime Bill [HL]

Baroness Smith of Basildon Excerpts

Tuesday 8th July 2014 Lords Chamber

[The Lord Speaker]

The Question is that Clause 38 stand part of the Bill.

[Baroness Smith of Basildon]

Should we not be debating whether Clause 37 should stand part?

[Lord Swinfen]

My Lords, the Lord Speaker put the Question that Clause 37 stand part of the Bill and it was accepted by the Committee. We are now on to the next amendment.

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Moved by

[Baroness Smith of Basildon]

31K: After Clause 40, insert the following new Clause—
“Annual reports: cyber-crime strategy
(1) The Police Reform and Social Responsibility Act 2011 is amended as follows.
(2) In section 12 (annual reports), after subsection (7) insert—
“(8) A report under this section must include details of the policing body’s strategy to deal with cyber-crime.””

[Baroness Smith of Basildon]

My Lords, I apologise if there has been some confusion. When the Question was whether Clause 37 should stand part of the Bill, I was loath to say no because, although I gave notice of my intention to oppose the Question, I really have no intention of opposing the clause. As noble Lords will agree, one way to have a general debate on the principle of an issue, rather than its individual parts, is to raise a clause stand part debate.

At the same time as moving Amendment 31K, which would require the annual reports of police authorities and police and crime commissioners to contain a statement on how they are tackling cybercrime, I will make some general comments on cybercrime and computer misuse. This is a probing amendment. The Bill amends the 1990 Act to create a new offence of unauthorised acts that cause serious damage, to implement the EU directive on attacks against information systems and to clarify the savings provisions for law enforcement. We have no difficulties with those provisions, but we wish to have a general debate and promote a discussion on whether the Government are doing enough or whether the Bill could go further and provide better and more effective protection from cybercrime.

Noble Lords may be aware that we also sought to table an amendment to create a new offence of identity theft. We have raised this issue with the Government before because it needs new legislation. We were disappointed that the Government did not take the opportunity to include something along those lines in the Bill. Noble Lords will know that, within cybercrime, identity theft causes a great deal of concern and affects a large number of people. However, it was not included in the Bill and, unfortunately, our amendment to address this was not in scope. I am sure we will return to this issue another time but, when dealing with cybercrime now, it is important to look at and address the loopholes in existing legislation.

There is little doubt that digital technology and the internet have changed our lives and provided us with new opportunities. However, they also create new challenges and provide new opportunities for criminals. Returning to the theme of Al Capone, even his creative criminal mind could not have imagined the opportunities that would be available to his successors in the 21st century. A recent HMIC report says that this could either be,

“where criminals use computers to help them commit crimes that would have been committed previously without the benefit of such technology, for example fraud and theft, or where they commit new crimes that were not possible before”,

or were not even thought of,

“such as an attack on government online services using ‘malicious software’”.

Recorded incidents of fraud have increased by a quarter over the past year but convictions have gone down. However, business crime—which surveys indicate is going up—is not counted in official figures despite online crime exploding.

The consumer watchdog Which? estimates that half of us have been targeted by online scams. Anyone who looks religiously through their spam in the parliamentary e-mail system will see scams offering services which I am sure most of us, particularly the women, would not want to take advantage of. Recorded online fraud is up by 30% but that is just the tip of the iceberg, because most of it is never reported to the police.

The Home Affairs Select Committee concluded in its report last summer that,

“there appears to be a ‘black hole’ where e-crime is committed with impunity. Online criminal activity which defrauds victims of money is not reported to or investigated by law enforcement. Banks simply reimburse the victims with no pursuit of the perpetrators. Criminals who commit a high volume of low level fraud can still make huge profits”.

Many members of the public take out insurance with banks and other organisations to protect themselves against online crime and identity fraud. I have yet to understand how easy that is or how it pays out to a victim. Although they may get their money back, the inconvenience, distress and worry caused by it are tremendous.

Despite that, the Bill does not offer a coherent government plan for tackling online fraud and economic crime, even though it would have been an ideal opportunity to do so. Looking at large-scale cyberincidents, the recent HMIC report has some very worrying findings. Only three police forces, Derbyshire, Lincolnshire and West Midlands, have developed comprehensive cybercrime strategies. The rest of us who live in other areas have to rely on some kind of knowledge within the police force because there is no specific strategy. Only 15 forces have considered cybercrime threats in their strategic threat and risk assessments and, where those assessments exist, the plans focus only on investigating cybercrime and are silent about preventing it and protecting people from the harm that it causes. While the Government and PCCs are increasing their investment in regional organised crime units, those units have not yet developed the necessary cybercapacity to assist the police forces. That indicates that there needs to be a real debate around these issues. There need to be new plans, new strategies and new actions in place to tackle new threats. The police need to do more, not less, to tackle online fraud and crime.

I have outlined that there is no serious strategy and that fragmented forces lack the skills and organisational structure to be effective. The shadow Home Secretary has said previously that that has to involve better skills and that the police need to have the skills in this very specialised area. They need better organisation, and they also need to co-operate with the private sector. That needs to be part of strengthening the law on identity theft. We have seen that there is some good practice within the police, but it is patchy. If it is going to be effective, it needs to be universal. Ensuring that this issue is addressed in the annual report will focus greater attention on it and on the strategies and plans that have to be made. What does not have to be reported can be forgotten or added as an afterthought. If it is central to the PCC report, we will have some way of measuring the actions taken. The scale of the challenge is too great for it to be forgotten or an afterthought.

I am not suggesting that the report itself will effect a marvellous change overnight, but it will help to ensure that the importance of this issue is recognised. As well as the impact on business, there is growing recognition of the implications for national security and our national infrastructure and its resilience. The security services and GCHQ also recognise that they need to do more to tackle the growing number of cyberattacks and the effects they could have. That means building on the work being done with major public and private sector organisations because we have to ensure that they are resilient against hacking and major online onslaughts. We have also said that we want major reform of oversight functions and responsibilities and accountabilities, and we want a major overhaul of the system of independent oversight commissioners, stronger safeguards and a serious review of the legal framework, including a full review of RIPA.

These clauses are welcome. They have our support. The reason for Amendment 31K is evident. It is to try to raise the issue which is of such importance. I seek assurances from the Minister that the Government recognise just how much this is needed. I express some disappointment. We think the Bill is an opportunity to go further, do more and really address the issues of resilience, national infrastructure resilience and national security. We are disappointed that an important issue in this area—identity theft—is out of scope of the Bill so we cannot address it. We support what the Government are doing. We think there could be more. We would like more. We would like to work with the Government to achieve more. I beg to move.

[Lord Phillips of Sudbury (LD)]

My Lords, I strongly support what the noble Baroness, Lady Smith of Basildon, said. The issue—if you can call it an issue as it is a series of issues—in relation to cybercrime could scarcely be of greater importance to our society. It is not just an economic crime of the greatest potential but a crime in all dimensions.

The only reservation I have about the amendment is whether it goes far enough. Besides having to deal with the strategy in relation to cybercrime, I would hope for something in the report about the extent of the implementation and enforcement of the laws we are passing and the laws we have already passed. It has become a commonplace in this House to remark upon the fact that we pass laws as if there is no tomorrow but fail again and again to implement the laws we pass. I therefore hope that the report will deal with that crucial aspect of the so-called strategy.

I am not clear as to whether we are in this group also now discussing whether Clause 37 shall stand part of the Bill. We are not? Right.

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[Lord Taylor of Holbeach]

Cybercrime is the use of computers—indeed, I may have it here. I have the Serious and Organised Crime Strategy, which uses the term. Cybercrime is the use of computers and electronic systems to commit a crime. Clearly, what happened to the noble Lord’s charity is a crime, committed extraterritorially. One of the aspects of cybercrime is that it is not globally isolated to particular territories or countries—hence the debates that we have been having on this particular issue. That is why we need to tackle it globally and why we need to be globally active in order to deal with it.

I believe that the clauses in this area are designed specifically to bring the Computer Misuse Act, which is what lies at the bottom of it, up to date, to recognise the threat that can exist from computer crime and particularly nowadays, when electronic use is so much greater than it was in 1990, when the Act was first brought in.

[Baroness Smith of Basildon]

My Lords, I am grateful to the Minister for his explanations and response to the debate and, indeed, grateful to those noble Lords who supported and spoke to my amendment. I am also grateful to the noble Lord for allowing a more wide-ranging discussion, although it may not have been technically correct. I quite like the idea that on the fourth anniversary of my introduction to your Lordships’ House I have created a new form of amendment, as the noble Lord put it.

As the noble Lord said, the question on the definition of cybercrime from the noble Lord, Lord Swinfen, was particularly appropriate. In this debate we have hit the nail on the head of how wide and vast this issue is. At one level we have the very big issues of national security and the resilience of our national infrastructure, which could be attacked by cybercrime. Then there are the issues around business security, with charities and organisations that can be affected by cybercrime. Then we come to the personal, which goes from merely inconvenient to causing misery and tragedy. All those things are encompassed in the term cybercrime.

The noble Lord’s explanation of what the Government are doing was very helpful. I do not see that any of that detracts from my amendment or makes it any less relevant. I remind the noble Lord of the point I made at the beginning: only three police forces—Derbyshire, Lincolnshire and West Midlands—have developed comprehensive cybercrime strategies. Only 15 forces considered cybercrime threats in their strategic threat and risk assessment. I do not doubt that at a national level a lot of work is going on and that it is well funded. However, it seems to me that if the annual report of the police and the police and crime commissioners focused on this issue and identified the work that was being done on it, that would let the public know what is going on and create awareness of this matter. The point made by the noble Lord, Lord Phillips of Sudbury, is absolutely right: this would be a way of monitoring implementation and enforcement. I do not see that anything the Minister said detracts from the usefulness of Amendment 31K.

[Lord Taylor of Holbeach]

If I felt that it could be useful, I would take a slightly different approach towards it. I hope that the noble Baroness will read what I said about the efforts being made to ensure that police forces take proper account of this issue. The HMIC report was a wake-up call: it made us realise that, for all the progress we have made in the National Crime Agency and the National Cyber Crime Unit, we also need a local presence on the ground and the involvement of local police forces.

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[Lord Phillips of Sudbury]

The noble Lord has referred a second time to the new reporting initiative for police forces and mentioned specifically the City of London police. As it happens, I was with them this very morning, when the initiative to which he referred was discussed. However, resources are a matter of acute concern for every police force in this country. We must go beyond simply saying that the Government have initiated a new plan or a new regime because, as I tried to indicate earlier—the noble Baroness agreed with me—it is absolutely fundamental that we give police forces sufficient resources to enable them to undertake the duties that we lay on them. I hope that my noble friend will take that very much into account.

[Baroness Smith of Basildon]

My Lords, the point the noble Lord makes about police resources is very appropriate. I know how many police officers have been lost since 2010 in my own county of Essex. I am grateful to the Minister for coming back to this point. He described the wonderful things that are being done and how impressed I will be by that. I will read the report and look forward to being impressed. However, my point is that, if the work being done is impressive, why not tell people about it and include it in the annual report? As I have said before, I have been a Minister, albeit in the other place, and I have received notes telling me to resist amendments. However, it seems to me that Amendment 31K simply asks for a commentary in the annual report of the police and crime commissioners or for the police force to say what they are doing in this regard. I think that it would give people confidence as regards this issue.

As I say, I am grateful to the Minister for explaining this range of actions but, if they are so impressive, I see no reason why they cannot be included in the annual report. We may return to this issue. I will read the Minister’s comments and the documents to which he pointed but, for now, I beg leave to withdraw the amendment.

Amendment 31K withdrawn.

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The Local Government Association has been in touch with me, as it will have been with other noble Lords, about the position of local authorities as not only housing providers but social landlords. One might well think of examples such as cannabis factories that could fall within this clause. If you let a house to a drug-dealing organisation, what precautions do you have to take to ensure that it is not an illegal organisation undertaking illegal activities? The activities of local authorities cover such matters as alcohol, public entertainment licences and the licensing of taxis. Cleaning services within council offices were also mentioned, as were letting contracts to resurface roads. The list would be extremely long. I am aware that in correspondence before today the noble Lord has mentioned the difficulties—I think that they are difficulties rather than restrictions—of prosecuting a body corporate, such as a housing provider. I hope that he can take this opportunity to explain that position to the Committee and put the matter on record. I beg to move.

[Baroness Smith of Basildon]

My Lords, I have three amendments in this group, Amendments 31N, 31R and 31T, and I have given notice of my intention to oppose the Question that Clause 41 stand part of the Bill to enable a wider general discussion around the issue. On the individual amendments, Amendments 31N and 31R concern a point referred to by the noble Baroness, Lady Hamwee, about the regulated professions. Currently, the standard for the new offence is,

“knows or has reasonable cause to suspect”.

That is deemed by organisations to be too high. The small businessman or sole trader may not have had experience of money laundering. This amendment removes that standard for lay persons and replaces it with “suspect” but keeps it for regulated professions with protections equivalent to those of Section 330 of the Proceeds of Crime Act 2002. Amendment 31T inserts protection from prosecutions similar to the consent regime in the Proceeds of Crime Act 2002 to provide a defence from prosecution where the person has sought consent from the Financial Intelligence Unit to continue with their work.

Clause 41 creates a new offence of participating in the activities of an organised crime group. It will be an offence to participate in an organised crime group’s activities knowing, or having reasonable cause to suspect, that those are criminal activities or that their participation will assist the organised crime group to continue with those criminal activities. The criminal activities can be any offence that is punishable by a prison term of seven years or more. The clause seeks to reach all of those who are engaged in criminal operations, including those whose specific role may itself be legitimate and appear legitimate, if they are actively supporting or benefiting from criminal activity.

Many criminal gangs include corrupt and complicit professionals who use their professional expertise and skills to evade the law. At Second Reading, I referred to this as being the “Al Capone” clause. I remind noble Lords that Al Capone was never convicted of crimes related to the worst aspects of his criminal empire. He was convicted of tax evasion. I have since been told that I am getting old and that my reference is dated. I should in fact have referred to a spin-off from the series “Breaking Bad” which stars a dodgy lawyer in the title role. The programme is called “Better Call Saul”. To prove that I am with it and up to date, I use a new reference at which the noble Lord is shaking his head in despair.

Cultural references aside, as I said at Second Reading, the activities of serious and organised crime gangs today are evil. They exploit the weak, the poor and the vulnerable. Whether they engage in drug trafficking, people trafficking into slavery and prostitution, organised illegal immigration, or extreme and violent pornography, the human misery caused by such gangs is limitless. It defies our imagination. They are also engaged in money laundering as a way of hiding the rewards of criminal activity. If we are really serious about tackling such evils, we must agree that the law should be able to reach all those who are involved in and benefit from such criminal activity.

Of course there has to be duty on any individual or organisation to take reasonable steps to assure themselves that their business dealings are legitimate and anyone who knowingly profits from criminal activities should be held legally accountable for their actions. We have given notice of our intention to oppose the clause standing part of the Bill. I stress that it is not because we oppose the clause—we do not—but because we want to seek some assurances from the Minister about the way it will work in practice. Some points are similar to those made by the noble Baroness, Lady Hamwee, and some are points that I raised in general at Second Reading.

We have discussed the clause and received representations and briefings, as have other noble Lords, from professional organisations whose members could be affected. I want to make it clear that in all cases, despite concerns they have raised about the wording of the legislation, they are very clear that any professional engaged in criminal activity brings their profession into disrepute and should face the full legal and professional consequences of their actions. There is no doubt about that. I am clear that they share the same commitment to ensuring that those who break the law should face the consequences. It is worth commenting that in addressing such issues I hope the Minister and his colleagues will want to work with the professional associations of those professions that could be affected to ensure that we get the legislation right. If he is able to say anything about the discussions and meetings he is having with those professions, it would be helpful. We want the legislation to be accurate and watertight. My experience is that no respectable professional organisation wants to see criminals within its ranks and they share the desire of the Government to work with the authorities to root out and deal with rogue professionals.

I now move on to something that is slightly an aside, but it is an issue that we have dealt with before. Like other noble Lords, I was surprised and disappointed not to see it tackled in the Bill. It concerns greater regulation and licensing of the private security industry. I am not going to labour the point. The Minister is smiling at me. He knows of my interest in and concerns about this issue. But this is a sad example of professionals wanting to work with the Government to seek better regulation of their industry and prevent bad behaviour and even criminality, yet the Government have failed to act in that area. The professionals I have met are clear that they share the Government’s objectives but they have concerns about whether the clause is needed and whether there might be unintended consequences. I will put on the record some of the concerns and hope that the Minister will be able to respond.

The Institute of Chartered Accountants in England and Wales does not consider that the clause is necessary. Developing the point made by the noble Baroness, Lady Hamwee, professionals within the regulated sector are required to undergo anti money-laundering—AML—training. They have legal responsibilities already under the Proceeds of Crime Act and the Money Laundering Regulations, including a duty to make suspicious activity reports to the Financial Intelligence Unit upon knowing of or suspecting any money-laundering. But there is currently no such requirement on an enterprising individual who sets up their own business outside the regulated sector and who may have no concept or proper understanding of what due diligence really means when entering into business relationships, despite the best intentions they may have.

The Institute of Chartered Accountants says that the clause as drafted would be too onerous on such individuals and could have the effect of criminalising a negligent or simply naive provider of goods or services when they are doing nothing wrong—just trying to earn a living—but the due diligence would be very onerous on them. The institute has suggested the amendments we have tabled. I cannot claim credit for thinking them up myself, as the noble Baroness, Lady Hamwee, suggested. I am grateful to the institute for its advice. The amendments retain the current objective standard of proof for regulated professionals but replace it for lay persons. It would be helpful if the Minister could respond to that point.

The duty on regulated professionals under the Proceeds of Crime Act to make reports of suspicious activity provides valuable intelligence for law enforcement agencies, giving them information on crime in action as well as past criminal activity. It also provides the person reporting the activity with defence from prosecution where they have sought consent from the Financial Intelligence Unit to continue with the work. Although that defence exists under the Proceeds of Crime Act, it is not present in Clause 41. My concern is that that could deter a professional who, having already started working for a client, realises or suspects that something is suspicious but, in reporting it, may fear being caught by the provisions of this Bill because it does not have the same defence mechanisms as the Proceeds of Crime Act, where reporting it provides a defence from prosecution.

In addition, the concept of assisting an organised criminal gang to carry on criminal activities is potentially problematic. The Law Society has pointed out that it is not clear under the offence,

“how far an individual must go to satisfy themselves that whatever service they are providing is not assisting criminal activities down the line somewhere. Certain criminal activities, such as drug trafficking, are more easily identifiable in some circumstances, e.g. a client may not be able to provide any evidence of legitimate income. Fraud and other financial offending, however, are not as easy to identify. It is not clear from the draft Bill what level of due diligence a solicitor would need to carry out to ensure that they could not be said to have turned a blind eye to criminal activity”.

Amendment 31T extends the application of Section 328 of the Proceeds of Crime Act to offences under this clause.

Returning to the question we raised at Second Reading as to who would be covered by the Bill, the Law Society says in its briefing that although the,

“Home Office wishes to target so-called ‘professional enablers’ with this new offence … the legislation is drafted so widely that it would capture far more people”.

I raised this point at Second Reading; the noble Baroness, Lady Hamwee, has raised it today. I declare an interest as another of the vice-presidents in your Lordships’ House of the Local Government Association.

As Second Reading, my specific question was whether local authorities—I also included social housing providers and private landlords—could be caught by these provisions. The example I used was a drug dealer illegally using a rented property that a local authority, housing association or private landlord had rented in good faith. If that activity is reported to the landlord or the authority and no action is taken to remove the tenant, I asked whether there could be a case for action against the landlord if it could be argued they knew or had reason to suspect that criminality was taking place.

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[Lord Taylor of Holbeach]

My Lords, as the noble Baroness, Lady Smith of Basildon, said, Clause 41 creates a new offence of participating in the activities of an organised crime group. I am pleased that she and my noble friend Lady Hamwee welcomed the general principles that underline this measure.

I think that we would all accept that, for far too long, many of those who take part in organised crime have been able to remain out of the reach of law enforcement. As we set out in the Serious and Organised Crime Strategy in October 2013, we are committed to doing everything we can to pursue them. The new participation offence complements the existing offence of conspiracy, which is central to the majority of law enforcement investigations into organised crime and will remain so. As noble Lords will be aware, conspiracy is used to prosecute two or more individuals who have agreed to commit an offence where the agreement can be evidenced and where the individuals intended the offence to be committed or knew that it would be.

In practice, there are a range of players in many criminal enterprises. “Conspiracy” is used to target the major players who commit the offence or who are fully aware of it and their contribution to it. The participation offence will ensure that there is an appropriate and proportionate sanction for those others who “oil the wheels” of organised crime, who deliberately ask no questions and who then rely on the defence that they were not part of the overarching conspiracy.

The participation offence is therefore complementary to “conspiracy” and can form the second tier of such an investigation. It will be triable only on indictment, with a maximum sentence of five years’ imprisonment. It will ensure that we can prosecute effectively the full spectrum of those engaged in organised crime.

Perhaps I may turn to the anxieties which noble Lords expressed about the way in which we have constructed the clause. Both the noble Baroness, Lady Smith, and my noble friend Lady Hamwee pointed to a number of concerns about the offence that have been raised by both the Law Society and the Institute of Chartered Accountants in England and Wales. As was pointed out, I had said that I hoped to meet those organisations and, since Second Reading, I have been able to meet representatives of both. We had positive and useful discussions about a number of issues. I am pleased to say that those discussions are continuing with officials at the Home Office; we see this as a continuing dialogue.

One of the concerns raised was that the participation offence risks extending the reach of the criminal law too far, and as a result capturing the naive or unwitting; or catching individuals where the “facts” seem more firmly grounded with hindsight than they might have done at the time; or creating anxiety among people that they might inadvertently be captured by the offence. There is a tension between defining an offence that addresses the broad range of activity that sustains organised crime and avoiding inadvertently capturing activities innocently carried out. Noble Lords have pointed to that in their contributions. I believe that Clause 41 gets this balance broadly right.

First, the offence requires a person to have actively participated in or facilitated the criminal activity in some way. To which end, I understand why my noble friend proposed Amendment 31M, which would insert text to emphasise this point. However, it may exclude the possibility that an omission or failure to act would be captured by the offence if it were both deliberate and arose for the purposes of furthering the criminal activities of an organised crime group.

Secondly, an organised crime group must consist of at least three persons. Amendment 31S would seek to remove this stipulation, but I put it to my noble friend that this definition reflects the definition set out in the United Nations Convention Against Transnational Organised Crime. Thirdly, the group must be committing offences carrying a sentence of seven years’ imprisonment or more. This threshold was adopted to catch typical organised crime group activities—for example, blackmail, trafficking in class A or class B drugs, people trafficking, assisting unlawful immigration fraud and theft.

Finally, the effect of subsection (2) of Clause 41 is to define the circumstances in which a person could be considered to be participating in an organised crime group in support of the offence outlined in subsection (1) of the clause. The definition has been drawn so as to capture those persons who know, or have reasonable cause to suspect, that their activities are criminal activities of an organised crime group or will help an organised crime group to carry on such activities. A “reasonable cause to suspect” must be firmly targeted on specific facts, and it will of course have to be proved by the prosecution beyond all reasonable doubt.

My noble friend Lady Hamwee highlighted the concern that local authorities could be unwittingly caught by the same offence. However, it is possible to envisage a number of scenarios where this offence could be of significant benefit to local authorities—or, indeed, banks or other businesses, since it goes beyond the professions. It would provide an appropriate and robust sanction against corrupt insiders: for example, where a bank employee steals customer data and supplies it to organised criminals; or where a local council employee receives corrupt payments to facilitate organised crime.

It is also worth repeating that for the participation offence to be committed, a person must have had reasonable cause to suspect, firmly grounded and targeted on facts, as I have said. If those facts are present, the granting of licences, for example, should not happen. Licences should not be granted if there is reasonable cause to suspect, or knowledge. Any prosecution would also need to prove that the person actively participated in or facilitated the criminal activity in some way. That test may not be met in the letting of contracts for the provision of services to a local authority. As a further safeguard, the Crown Prosecution Service must be satisfied that any prosecution would be in the public interest. I want to take this up further with the Local Government Association because I think that some of its anxieties are unfounded, but I want to be certain that we are reading this correctly in this respect.

[Baroness Smith of Basildon]

I am grateful to the noble Lord. That is very helpful. I have just two questions. First, may I give him the list that the LGA provided to me and ask him to comment on it in writing to noble Lords? That would be helpful. Secondly, in the case that he mentioned of offences where somebody within an organisation is passing information or money out to an organised crime gang, would they not be offences already; or does this create a new offence, or just greater penalties? I would have thought that those kinds of activities would be offences already, perhaps under conspiracy.

[Lord Taylor of Holbeach]

Yes, they could be if they were seen as integral to the conspiracy. However, the whole concept of a participatory offence is the arm’s-length connection that there sometimes has been, which has made conspiracy an aspect of the law that is not particularly easy to use. By creating a participatory offence, we would make those connections with criminality that much easier to establish and, indeed, would cut off the support that organised crime groups have frequently had from insiders who have provided them with assistance. As I said, I hope to talk to the Local Government Association about its anxieties. I would be grateful if the noble Baroness let me have a copy of the particular things that she was concerned about and I will do my best to answer them in correspondence. I will make sure that other noble Lords and the Library are made aware of that, too.

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[Lord Taylor of Holbeach]

Right at the beginning of my speech, I talked about balance. I said that I thought we have got the balance in Clause 41 just about right. We do not want to upset the balance. We want to reassure people, particularly the professional groups that have been to see us and the Local Government Association, that that balance can be made to work for them. If it means that we come back on Report with some ideas on that, I am sure the House will welcome them because generally the House understands exactly where the Government are on this issue. Even though probing questions have been asked by my noble friend and the noble Lord and the noble Baroness, I understand that underlying them is their support for this participation offence and that they want to make it work.

[Baroness Smith of Basildon]

I want to raise a point on Amendment 31T. The Minister rejected the idea of a defence if a potential offence is suspected and reported. For example, under the Proceeds of Crime Act, a potential offence can be reported to the financial investigation unit. That is a defence, but not a guarantee, against prosecution. My concern is that one of the reasons that that defence is in the legislation is so that those who uncover what they believe may be illegal activity are not deterred from reporting it to the relevant authority. It is very useful information. Has the Minister considered whether it will have a deterrent effect if somebody working for somebody discovers some way down the line that there may be criminal activity? Does he consider that they may fear reporting it if there is no defence for them to be gained by reporting it? When the Minister meets the professional associations concerned, will he discuss the processes by which they will establish due diligence to see whether there are any additional costs involved that they can outline to him?

[Lord Taylor of Holbeach]

Our discussions went into that area. We discussed how these matters would be considered by them. The noble Baroness will appreciate that as we want to encourage people to report suspicions as soon as they have grounds to suspect, even more so if they know, they should have every incentive to report the matter. However, one would not want to create a general defence that would enable somebody to have, in effect, a “get out of jail free” card so that when things got a bit hot, they were automatically able to create immunity for themselves against prosecution. I am not convinced by the argument that where we are is wrong. We want to talk to professional organisations because we see how important it is to have them on side in the fight against crime. I know from what they have said to us that they are approaching this issue in exactly that way. They want to make sure that their professions are supportive in the fight against crime, and that any within their professions who are not pursuing that objective but are assisting crime are punished.

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[Baroness Hamwee]

My Lords, like my noble friend and other noble Lords, I do not want to comment on the fine detail of the amendment but simply to support the noble Baroness. Her points about avoiding criminalisation and what I might summarise as an active, supportive, constructive response, are immensely important. Under the noble Baroness’s chairmanship, some of us met a number of MPs from Portugal. We were very struck by the agreement across the parties about the benefits of this measure and the lack of contention around it. We actually ran out of questions to ask them on that issue. Clearly, in that country they have succeeded in taking some of the heat out of the drugs issues, which has been a very considerable achievement. I hope that we might learn from that example.

[Baroness Smith of Basildon]

My Lords, I am grateful to the noble Baroness, Lady Meacher, for giving me a copy of her amendment and a briefing note on it when she tabled it. I was not aware of the Portuguese experience as my noble friend, Lord Howarth described it. It is interesting and bears further consideration. I am not an expert on whether the detail of the amendment is correct. It looks complicated, which might be because it was drafted by a lawyer, but I suspect that it is not so complicated in practice.

These dissuasion panels would sit alongside the injunctions, such as is proposed in the Bill, and a police officer would refer a young person if they were involved in gang-related violence or a drug-related activity. The panel would be tasked with assessing the young person. It would determine whether there was a need to require the young person to undertake some form of action, whether that be treatment or counselling, to prevent them engaging in further activities, to protect them or to address their drug dependency. That seems to be a more holistic approach to tackling the drug culture and drug abuse.

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[Baroness Meacher]

I regret that the Minister referred to the speech of the noble Lord, Lord Howarth, as incoherent—or words to that effect. It seemed to me that the noble Lord’s arguments were incredibly powerful with regard to the lack of appropriate skills and training of the people in the courts, and the Howard League case he referred to. Obviously, as I said in my own speech, matters are made a great deal worse by cutting somebody off from their support systems and so on. I have to say that many of the comments made by the noble Lord, Lord Howarth, support strongly the case for having a professional tribunal or dissuasion panel to look at these cases, rather than leaving it to the courts, which do not appear to have the skills needed in these very difficult situations. I absolutely agree with the Minister that these are difficult problems; they have to be dealt with, but they have to be dealt with professionally, and I think that is the point the noble Lord, Lord Howarth, was trying to make.

[Baroness Smith of Basildon]

I had intended to speak in this debate. The noble Lord was uncharacteristically quick off his feet to respond to my noble friend. This clause requires some clarification and I am sorry that he seems quite upset about the probing questions that have been asked. I will listen to what he has to say. If the issues I intended to ask him about are not addressed, I will come back to him at the end of his comments, but there are some points of clarification that would be helpful in this debate.

[Lord Taylor of Holbeach]

I am sorry, I just felt that the closing remarks of the noble Lord, Lord Howarth, when he said that government policy lacked coherence in this area, were belied by the contribution that I had made in the previous debate on the amendment moved by the noble Baroness, Lady Meacher.

--- Later in debate ---

[Baroness Smith of Basildon]

I am grateful to the noble Lord, as I think the noble Baroness, Lady Meacher, was intending to speak on this. We were looking at each other, and the noble Lord beat us both to the Dispatch Box.

I will be brief, as the Minister has sought to answer some of the questions, although others remain. We accept that the current definition of gangs has not been able to include or address some of the existing problems. The number of injunctions indicates that. Our worry is—this was raised at Second Reading—that in broadening the definition it becomes easier to get the lower-hanging fruit. There are two levels here. There are those gangs which are violent, intimidating—there are serious levels of violence in some cases. There are others who are altogether different: younger people who may appear intimidating to some people close to them and will have signs to indicate that they are gangs, but are of a very different order from those who threaten and terrorise communities. So there are two kinds of gangs under discussion. We want to see the most serious kind—the intimidating and violent— come into the ambit of this measure, but not by widening the definition so that those who are easier to catch and easier to identify, or are on the fringes of gangs, are inadvertently caught up.

I do not know whether the noble Lord, or any other noble Lords, saw the TV programme on Sunday evening called “Common”. I hesitate to address legal issues in the presence of the noble and learned Lord, Lord Hope of Craighead, but this fictional drama examined the law of common purpose or joint enterprise. If I understood right—I am sure I will be corrected if I am wrong—that law dictates that all participants of a criminal enterprise have a responsibility for all the results of that enterprise. This was a case about a young man who was before the courts on a murder charge, even though he was the driver of the car and had no idea what was happening. Nevertheless, he was part of that criminal enterprise.

We have a slightly similar issue before us: could those who may not be part of violent activity, perhaps on the fringe but not involved, be somehow caught up? I am not defending those who are part of a criminal gang, or part of an activity where they should be held responsible: it is the idea of the wider definition catching the lower-hanging fruit, those who are easier to place an injunction on in the courts. Given that the first condition has to be satisfied on the balance of probabilities—the respondent has engaged in, or has encouraged or assisted gang-related violence or drug dealing—it would be helpful if the Minister could say exactly how he defines “engaged in, encouraged or assisted”. I suppose “engaged in” is quite easy. However, will whether someone is “encouraging” or “assisting” be defined in guidance?

I also echo the point made by my noble friend Lord Howarth when he asked for guidance from the Minister on what measures could be expected from the courts—when will that guidance be available? Will it be made available to your Lordships’ House before Report? It would be quite helpful in those discussions. Furthermore, concerns were raised by several noble Lords at Second Reading that the standard of proof here is a civil rather than a criminal one. I do not think the Minister addressed that in his comments in response to my noble friend. It would be helpful if he were able to address that.

I am sorry not to be as quick on my feet as the noble Lord—he is obviously fitter and healthier than I am. I will do better in future.

[Lord Elton]

My Lords, before my noble friend applies the secateurs again to this budding debate, perhaps I may give notice that I also have points to raise, after he has dealt with this one.