| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
Lord Campbell-Savours: Perhaps I can come back to my noble friend; I am sorry to press this matter. I was told today that that is precisely what dealers do. They offer for sale this equipment for those purposes. Perhaps we can come back to this on Report having gathered a little more information. I am not trying to be difficult, but I feel we should consider that it is not only the software that we are talking about.
Lord Filkin: I can give the assurance that my noble friend seeks: if we are not able to satisfy him before then, we shall return to this on Report. We will clearly check whether, on a common sense interpretation of the law as drafted, there is any risk of the type he implied. The broad thrust, as I expressed earlier, is that a dealer is only liable if he seeks to sell such equipment or undertakes such activities with an intent to commit the offence that we are seeking to prevent.
The amendments of the noble Lord, Lord Dixon-Smith, would replace the offence in Clause 2(1) of the Bill. Clause 2(1) provides that a person who possesses anything which can be used to change an IMEI number, and intends to use it or allow it to be used for that purpose, commits an offence. The offence covers all the equipment or software that may be used for reprogramming, which is perhaps the point of my noble friend, even if it was not designed with that in mind. The amendments would remove from the offence the need to show intent. It would be a defence if the person concerned could demonstrate that he was required to have possession of the equipment or software for legitimate purposes.
The Government's position, as I explained in my letter to the noble Lord, Lord Dixon-Smith, is that we do not believe the concern to be justified. We accept that the equipment required to re-programme the identification number may also be used for legitimate purposes. However, the requirement in Clause 2 to show intent will mean that the Bill will not criminalise people who legitimately possess equipment which can be used to change an IMEI number. The offence is only committed if there is proof both of possession or of supply of the equipment and of intent to use it to change the number. It is that lock of the two that is central to the offence.
The provision has been drafted in close consultation with the police, the Crown Prosecution Service and the mobile phone industry to ensure that it does not cover
the legitimate use or supply of equipment. The noble Lord previously explained that he sees a difficulty with proving intent. But the concept of intent and belief are already used extensively in criminal law without major difficulty. For example, the Theft Acts create the offence of theft where a person dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it. The courts have held that intention can be deduced from the circumstances of a case.In many cases a defendant will deny that he intended permanently to deprive the owner of the property. But the courts will look to what the defendant did with the property to ascertain his intention. So under Clause 2 of the Bill, in the absence of a confession, the courts would look to see what the defendant knew and to what use he had put the equipment in order to ascertain his intention. In the context of the Bill proof of intent may emerge from evidence gathered by the police in targeted, intelligence-led operations; for example, where a stockpile of handsets with the same IMEI number was found in the custody of an individual who also possessed the relevant equipment. In that circumstance one could envisage that the Crown Prosecution Service would feel that there was a reasonably strong case to answer.
The police and the CPS are confident that they will be able to mount successful investigations and prosecutions under the Bill. They are currently working on joint charging standards to ensure that the legislation has the maximum effect. Therefore we do not consider the amendments to be necessary to safeguard owners or suppliers of equipment or software which is used legitimately. I can add weight to that by instancing the sort of work already being undertaken by the Merseyside Police Force, which is in the process of identifying the retailers who currently supply such equipment and giving them advance warning of the Act, ensuring that they are aware of what they need to do to avoid any risk of criminality on their part.
In the light of my remarks, I hope that the noble Lord, Lord Dixon-Smith, will accept that, while this is by no means the total solution to mobile phone theft, it is a necessary part of it. We believe it makes progress. It will support the initiatives that the mobile phone industry has put in place to reduce mobile phone theft, and it is important that the Government respond in this way. But it needs to stand alongside many other measures which are currently under way.
Lord Dixon-Smith: I do not intend to be facetious when I say that the Minister, in explaining why he rejects my amendment, actually supported the amendment that I could not move. He said that one of the circumstantial facts that the police would take into account in judging an offence under the Bill is the possession of a cache of mobile phones with the same IMEI number. If that was an automatic offence people might not do it, and it would in fact be quite a disincentive.
The Minister gave a considerable explanation as to why the Bill will work and why my amendment may not be necessary. But he did not pass an opinion as to whether or not my amendment would strengthen the Bill. I am grateful to the noble Lord, Lord Dholakia, for his remarks, and more importantly to the noble Lord, Lord Campbell-Savours, for his brief intervention, which indicates how technically difficult the problem is with which we are dealing. In the circumstances it is probably prudent for me to say that we will study the Minister's response. Perhaps we can meet before the next stage of the Bill to see if we can resolve our differences off the Floor of the House, which would be a happy outcome. If not, we may need to return to this matter in due course. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 2 [Possession or supply of anything for re-programming purposes]:
House resumed: Bill reported without amendment.
Tax Credits Bill
4.59 p.m.
The Parliamentary Under-Secretary of State, Department for Work and Pensions (Baroness Hollis of Heigham): My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Tax Credits Bill, has consented to place her prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
Lord Higgins moved Amendment No. 1:
- Page 7, line 15, leave out subsection (4).
The noble Lord said: My Lords, Amendment No. 1 is a simple probing amendment. It seeks to leave out subsection (4). Clause 10 is concerned with the maximum rate of tax credit which may be paid and in particular the situation with regard to child tax credit.
The earlier part of the clause sets out its purpose and describes the way in which a determination of the amount of tax credit should be established. It mentions various elements of that tax credit, namely an element which reflects the entitlement of a person to child tax credit and an element which reflects the situation with regard to each child or qualifying young person for whom the individual or the couple are responsible. There is a third element which specifies how those shall variously be described.
However, subsection (4) simply states:
- "The prescribed matter of determination may involve the inclusion of such other elements as may be prescribed".
Earl Russell: My Lords, I have a lot of sympathy with this amendment. The clause in the Bill is open-ended to the point of vacuity. It reads:
- "The prescribed manner of determination may involve the inclusion of such other elements as may be prescribed".
It empowers the Secretary of State to do almost anything. I know that departments want flexibility. But departments and Parliaments are always competing interests. There are always two sides to the net. When one gets to the point where there is only one side to the net, and the law allows the Secretary of State to do whatever he likes, then we sign away our usefulness.
I am sure that the Minister has perfectly sensible things that she wants to do under this power. In which case she might define it a little more tightly in order to allow herself to do what she actually wants to do, which I am sure is not nearly as nefarious as all the various things that could possibly be done under the clause if one had a mind to do them.
Baroness Hollis of Heigham: My Lords, when the noble Lord, Lord Higgins, stood up, I was not sure whether he was more concerned with the infelicity of the drafting, in other words, he was going to do a critique of its syntax—which is to some extent the point of the noble Earl, Lord Russell, with which I have sympathy—or whether he had a more substantial concern with the breadth of the clause. I am very happy to try and put on record why we believe we need the clause in its drafted form.
The aim of the provision is, as the noble Earl, Lord Russell, suspected, to create a flexible framework so that the child tax credit can adapt to the changing needs of families. That must always be within the framework provided by the Bill. But the provision would allow us a different way of targeting additional support to families with children. Therefore, the child tax credit would react sufficiently and ensure that we could provide the most appropriate support to families with children.
I wish I could predict how that power might need to be used. If I could, I would specify that and it could be done by regulations, and so on. But we need this power for the flexibility. Perhaps I may give a couple of reasons why. We know, for example—and this is an issue which I have raised before—that in the next few years a third or more of all poor children will be living in large families. We might very well want to strengthen the tax credit system to have, for example, a premium for large families to help them better move into the world of work.
Perhaps I may look backwards. Experience suggests that we need such flexibility, and governments have drawn on such flexibility in the past. For example—
and I asked the officials to check this for me—with family credit, the then government had a similar flexibility which was used to introduce extra money for the 30-hour premium, which gave additional support to families who worked longer hours.Later, within the Bill that dealt with working tax credit that your Lordships were involved in, such flexibility was used to give more support to disabled children in the light of evidence that the degree of poverty in those families was even more severe than we had originally anticipated.
Clause 10 is a benign clause. It allows the inclusion— not exclusion—of additional elements. It cannot touch the basic structure—the CTC and working tax credit—but it allows the inclusion of additional elements. I cannot conceive how that could be other than beneficial to families that we are trying to help. Any additional element must be in addition to the child and family element—it cannot scrap it—which under Clause 10(2) we must provide for and which will remain key elements of support in the child tax credit. It must remain within the general framework of the Bill provided by Clause 9. Additional elements must also sit within that.
The noble Earl, Lord Russell, pressed me on whether we could draw the regulations more tightly. Actually, no. We either have the power to introduce new and not yet identified elements, or we do not. If we have that power—and I have taken legal advice on the matter—we need the vires that we have taken, which are the same kind of vires, powers and flexibility that have been drawn down by previous governments.
Next Section
Back to Table of Contents
Lords Hansard Home Page