Order for Second Reading read.
I beg to move, That the Bill be now read a Second time.
I turn first to a point that we must collectively understand. Members will know that this Bill has already been through the other place and, as ever, in most regards it is all the better for the scrutiny there. I accept that the Home Office has introduced a relatively large number of legislative measures over the last 10 years, and I do not doubt that that issue will be referred to again today. Legislating, as people know, is not governing, and the Home Office cannot and should not be a legislative sausage machine. So the first question that I ask, as a Minister, is, “Does the Bill in question add to our fight against crime?” In this case the answer must be and surely is a profound yes.
What does this Bill do? It provides a flexible new tool for law enforcement to use in preventing the serious harm caused by criminals, before it can have an impact on individuals and communities. It will improve the sharing of data across the public and private sectors for the purposes of detecting and preventing fraud. It takes forward much of the work done by the Law Commission in plugging the hole in the criminal law on encouraging and assisting crime. It will also enable us to improve the way in which we take away the profits made through the suffering of others through serious crime. The Bill also takes forward the Government’s proposals in last year’s Green Paper and has already been rigorously scrutinised in the other place. The result is a Bill that delivers what I am sure all of us want, and what all those we represent need. The Government introduced amendments to address concerns expressed in the other place and these have improved the Bill. I am grateful to Opposition Front Benchers for the constructive way in which their parties approached the provisions in the Bill, introduced into the other place.
The Minister suggested that this place should not become a legislative sausage machine. He will know that between 60 and 65 pieces of legislation have emanated from his Department since 1997. Is he aware that of that number 34 have yet to be fully or partly implemented and many contain provisions that have already been repealed by subsequent legislation? The sausage machine is working full-out under his command.
I am fully aware of those points, and they go to my opening remarks. I suggest that the hon. and learned Gentleman get out more, if that is the best he can do for a pastime.
There were, of course, two areas of policy introduced into the Bill in the other place that were not welcomed by the Government—for reasons I will come to—concerning a power to search for firearms and provision to allow intercept to be admissible as evidence. I will return to both topics shortly after I have dealt with the substance of the Bill, as is appropriate on Second Reading.
On serious crime prevention orders, we need to provide law enforcement with a flexible means of preventing the harm caused by serious crime before it can have an impact on our communities. Someone who brings heroin on to our streets must be caught quickly, brought to justice effectively and punished appropriately. However, is it not better to ensure that the heroin does not hit the streets, with the attendant harm, in the first place?
Clause 1 creates such a tool in serious crime prevention orders. The name makes it clear: they will prevent the harm caused by serious crime before it occurs. They are not a punitive measure. They will be used only against those who have been proved to be involved in serious crime.
Everyone wants to deal with heroin dealers effectively. Is the Minister aware that only two people were given the maximum sentence for dealing in class A drugs, according to the last figures I received about a year ago? Does not he agree that before he introduces new legislation he should use the legislation we already have more effectively to put those people behind bars, where they belong?
The hon. Gentleman will know, because he is an astute Member, that we are talking about subsequent legislation. He makes his usual sweeping assertions, which I accept for the sake of convenience, and I agree that all the powers that we have on the statute book should be used to their fullest extent, but I do not accept his starting premise. It is right and proper to consider any gaps in the legislation alongside the proper utilisation of existing statute. The fact that some of the existing provision is not used as fully or extensively as it might be does not preclude the proper introduction of new legislation where appropriate.
The Minister mentions heroin reaching our streets. Given that the Serious Organised Crime Agency has prime responsibility for UK drug seizures—there are concerns about its performance in that regard—is now the time to transfer the responsibilities of the Assets Recovery Agency to SOCA, which is struggling with its core responsibilities? There is also widespread concern about SOCA’s accountability. Only last month, Lord Justice Sedley described it as
“a region of executive action free of judicial oversight”.
Absolutely not. I am tempted to apologise to the House for introducing the issue of heroin, which does not figure in the Bill. I take issue with the hon. Gentleman’s assertion that somehow SOCA is struggling with its core duties. That is not the case at all. It is barely a year old and it goes from strength to strength. It is doing fine work. All the elements in the Bill that put the ARA with SOCA were welcomed in the other place. It is in all our interests to ensure that SOCA and the ARA work collectively in the fulfilment of their core activities.
We all want effective action against serious crime, but I am rather puzzled by how the Government define that. Why is fishing for salmon with a “prohibited” instrument to be regarded as a serious crime? Will the provision extend to someone poaching farmed salmon? What is the rationale behind it?
The offence merits inclusion as a serious crime under certain circumstances. Neither I nor any other Minister thought the measure up as a means of attacking people who enjoy fishing. It has been included in the Bill because ACPO tells us that salmon poaching is a widespread and serious environmental crime in our countryside. We are not attacking individuals: our intention is to deal with a serious and substantive organised crime. Even if it is aimed principally at salmon farms, who am I to challenge ACPO’s expertise in the matter?
I can understand that salmon poaching using dynamite would be a serious offence, but legislation already exists to control the use of explosives. Why does schedule 1 make no mention of homicide, serious assault such as grievous bodily harm, or terrorism offences? Will the Bill deal with such matters in another way?
I am afraid that that was not entertaining. Very unusually for a man of the law like the hon. and learned Gentleman, it was obtuse. My answer goes back to the point made by the hon. Member for Monmouth (David T.C. Davies). I think that the House will agree that, in relative terms at least, we are probably well covered for homicide, terrorism and a range of other serious crimes. This Bill is designed to fill the lacunae that exist in the law, and its scope does not extend to every crime that, however remotely, could be construed as serious. As I said earlier, the Bill and schedules have been devised precisely to fill what we perceive to be holes in the existing legislation covering serious and organised crime. An ongoing review of homicide law will report in due course. The hon. and learned Gentleman is esteemed for his knowledge of that legislation: he should point out what he considers to be serious gaps in it to those carrying out the review, and not to me. I am sure that they will be pleased to hear from him, but this debate is not the appropriate location for such observations.
As I was saying, clause 1 proposes serious crime prevention orders. Their name makes it clear that they will prevent the harm caused by serious crime before it occurs. They are not a punitive measure. They will be used only against those who have been proved to have been involved in serious crime.
All hon. Members will have received the briefing from Liberty. In advance of discussion here and in Committee, I must note that—unusually—it contains important inaccuracies. In the main, I have high regard for Liberty briefings, even though I sometimes I disagree with them, but this one is littered with unfounded assertions and important inaccuracies. It seems to belong more to the Paris Hilton school of intellectual rigour, as it does not live up to Liberty’s usual standards. The briefing states, for example, that
“the Government may hope that these orders are a way of getting round the presumption of innocence because the applicable standard of proof will be the lowest civil standard of ‘on the balance of probabilities’”.
That is absolutely wrong. My noble and learned Friend Baroness Scotland stated categorically in the other place that, in keeping with the House of Lords judgment in the case of McCann, we expect that the standard of proof required in relation to the question of whether a person has been involved in serious crime will be the same as in criminal cases, namely “beyond reasonable doubt.”
Liberty’s assertion is thus entirely unfounded—a bit of a shame. Contrary to the statement in the briefing, the purpose of the orders is not to avoid the full rigours of criminal prosecution; they are aimed at preventing future behaviour, not punishing past behaviour. If a criminal prosecution is possible, it will be brought. As set out in clauses 1 and 6, the orders will contain only conditions that prevent the subject from further involvement in serious crime. That is set out clearly in the Bill and goes against Liberty’s assertion that the conditions that can be put in place would amount to criminal sanctions. The conditions will be decided by the High Court, or the Crown Court in the case of an order made immediately on conviction, and can and will act only in a way that is compatible with convention rights.
I appreciate that as the Bill provides that the threshold for making the order is reached only in the event of conviction, most people would be satisfied with that as proof that somebody was involved in the commission of serious crime, but there is real concern, which goes beyond the issues raised by Liberty, that people could be caught by other provisions in the Bill for conducting themselves in a way likely to facilitate the commission of a serious offence by themselves or another person. When the extent of the anticipated involvement and the nature of the predicted crime need not be specified, surely the fact that such a provision could produce an extremely restrictive order, with a five-year punishment on breach, should give us real grounds for concern.
I do not agree that the hon. Gentleman’s point goes beyond those raised by Liberty, but they will all be better discussed in detail in Committee. I accept that there are concerns around the edges, but my starting point is that Liberty’s assertion about a standard other than “beyond reasonable doubt” is factually inaccurate. Dealing with the subsequent details relating to the High Court and Crown Court route and the preventive and disruptive powers of the orders is a perfectly fair matter for debate in Committee. We want the orders to work and if what the hon. Gentleman suggests would be a barrier to that, or if there are concerns that they would run counter to compatibility with the convention, those matters can usefully be explored in Committee, but I half take his point—I do not mean that churlishly; I genuinely only half take the point.
The orders must be flexible to be effective, but they will operate within the context of strong legislative and procedural protections for the subject, which relates to the hon. Gentleman’s point. We think, however, that they will provide law enforcement with the means to tackle serious crime more comprehensively than has been possible to date.
Clauses 41 to 62 make important changes to the criminal law, which will ensure that those who encourage or assist offences are held accountable for their actions. Those changes were recommended by the Law Commission and broadly agreed by the other place, so I do not particularly want to dwell on them. I am sure Members will have huge fun going into the detail of the Law Commission’s recommendations in Committee.
The measures in clauses 63 to 67 will help to combat fraud, by providing public authorities with the tools to better detect and prevent fraud—apologies for the split infinitive. They are in two distinct parts: data sharing and data matching. Every aspect of the sharing and matching of data proposals will be carried out in accordance with the provisions of the Data Protection Act 1998 and will automatically—
When I have finished the sentence.
The measures will automatically attract the oversight of the Information Commissioner, with whom we have consulted throughout the development of the policy, in his capacity as independent regulator and guardian of the Data Protection Act.
I am sure my hon. Friend will join me in offering our condolences to the family of PC Jon Henry, who died in my constituency. I am sure, too, that he wants to ensure that the valuable measures in the Violent Crime Reduction Act 2006 to tackle knife crime are all enforced, including speeding up the implementation of section 43 on the sale of knives to under-18s. The provisions for data sharing are extremely welcome, but will my hon. Friend clarify whether they will include sharing data across the whole of the Home Office and, in particular, cover the sharing of immigration information if, as we are hearing, the alleged perpetrator in this instance was an immigration overstayer?
I associate myself absolutely with my hon. Friend’s remarks about PC Jon Henry and about our fully implementing the Violent Crime Reduction Act 2006 and all the provisions in it that deal with knife crime. This Bill deals with serious crime rather than violent crime, but as I said yesterday at Home Office questions, it is not an abdication of our responsibility to say that the use of knives by young people will not be dealt with just by legislation. As I think the whole House broadly agrees, we have made it clear that education, awareness and a range of other issues must come into play in terms of getting rid of the culture in which it is considered smart or otherwise to carry knives and associated weapons. It would be wrong to stand here as a Home Office Minister or as a Minister of any description and to say that somehow, by magic, legislation will deal with this matter.
As far as we can push the legislative dimension, we have done so. It would also be fair to say that at least some elements of quite how serious we are about knife crime need to be understood a bit more fully by colleagues in the judiciary. I do not mean that in any disrespectful sense, but just to put the point on the record. We will take forward as much as we can all that is in the Violent Crime Reduction Act.
I perfectly understand why my hon. Friend used the interesting hook of the data sharing and data matching provisions in the Bill. Her point about the immigration department and sharing information across government is not in the strictest terms covered by the Bill, because that point should already and does pertain. She will know that we are trying across government, and certainly across the Home Office, to do more and more about the integrity of assorted databases on the immigration side and everywhere else. Data sharing and data matching across government and all law enforcement agencies, and not just in terms of this Bill but far more generally, will be the absolute key to tackling many of these crimes and many of these issues.
My hon. Friend will forgive me if I do not comment on the immigration status or otherwise of the individual of interest to the police in the case of the tragic murder of PC Jon Henry. I simply cannot go down that road, but I take her point none the less.
As I was saying, it will be appropriate for the Committee to debate what we do about data matching and data sharing in the context of serious organised crime, and I think that everyone agrees that, as technology and the use of data develop all the more, data sharing and data matching across government and the law enforcement agencies will be central to the fight against crime, not least the serious and organised crime of the future. That point has already been well made by a range of people far more experienced than I, but it is widely accepted that a Government of whatever party will collectively need to catch up with the use of data across all walks of life.
The Data Protection Act 1998 will cover these measures and the Information Commissioner, in his role as regulator and guardian of the Data Protection Act, will also cover them. The first data protection principle of the Act requires, among other things, that personal data should be processed fairly and lawfully, and all the provisions in the Bill are designed to comply with the Act.
The data sharing provisions in clauses 63 to 66 create a legal gateway through which public authorities may share information for the purposes of preventing fraud. This sharing is to be done through a specified anti-fraud organisation, of which there could be several, and will enable information to be shared between the public and private sectors in a way that is not always possible now.
There is as yet no specified anti-fraud organisation—and arrangements made by them may vary—but CIFAS, the UK’s anti-fraud service, is an example of a body that could be so specified. Members of CIFAS, who are typically financial institutions, keep a database of persons who are suspected of having attempted to commit fraud against them. Other members may then check applications for services against that database to see whether they should have reservations. CIFAS members report having avoided fraud losses of £790 million in 2006. That clearly shows the worth of the database.
During discussions of the provision in another place, Baroness Scotland committed the Government to introducing an amendment requiring the Secretary of State to produce a code of practice that all public authorities sharing the specified anti-fraud organisation must have regard to. Liberty has welcomed our intention to do so, and that will be dealt with in Committee.
The data-matching provisions in clause 67 involve placing the national fraud initiative, a biennial Audit Commission-run exercise, on a statutory footing. The national fraud initiative is a proven tool in the fight against fraud. In the last cycle, more than £111 million of fraud and overpayments were identified. We made a number of amendments in the other place to strengthen the controls and safeguards within the measures and to include statutory involvement of the Information Commissioner.
The Audit Commission will not be able to use the powers to profile individuals and predict who might commit fraud in the future. The provisions are about preventing and detecting the fraud that is happening right now. They create a proportionate regime that complies with the Data Protection Act and the UK’s human rights obligations, while preventing and detecting fraud losses suffered by the public purse.
I welcome the measures on data sharing and the Minister’s assurances that they will not be used for data mining or phishing, which is one of the concerns raised elsewhere. Will he respond to the concerns raised by the Joint Committee on Human Rights, which suggested that any fraud organisation could make disclosures of data collected in this way, not merely those specified by order of the Secretary of State?
It is right and proper to specify in the way that we have. I know of the concerns of the JCHR, but they might be more suitably explored in Committee, where assurances can be given. I take the point. Although I am relatively open on this matter, I probably do not share the concerns of the JCHR. Some of the concerns expressed in the other place were the other way around, in the sense that it was asked why one organisation—CIFAS or whoever else—should have sole rights under specification. So we are trying to make that broader. In the end, for the thing to work, it would be appropriate for any organisation that wants to seek the same status as CIFAS or any other specified organisation to do so. As I said, that can be explored more readily in Committee.
I do not resile from all that I have said about data sharing and data matching being crucial in the fight against crime generally, and even more so in terms of serious and organised crime. However, it is right and proper that we put safeguards in place to prevent data mining and data phishing—a different sort of phishing from the fishing that was referred to earlier.
On the proceeds of crime, law enforcement agencies have used the powers in the Proceeds of Crime Act 2002 to ever-increasing effect. In 2006-07, they recovered a record total of more than £125 million of assets from criminals, representing a fivefold increase over five years. Last month we launched a new asset recovery action plan to double last year’s total to £250 million a year by 2009-10. Clauses 68 to 76 bring forward a set of proposals that will contribute to the delivery of this new target.
Does the Minister accept that one of the reasons why the Assets Recovery Agency has not been as successful as we all might have hoped is that when cases are brought under the Proceeds of Crime Act, they take a long time and are defended to the hilt—often by the use of changes of counsel or the extensive use of the Human Rights Act? It could be argued that that is why those cases have not set the necessary precedents to allow the ARA to recover as much money as it, and we, would like. If that is the case, what confidence can any of us have that the transfer of responsibilities to the Serious Organised Crime Agency will be any more successful?
The hon. Gentleman has got the wrong end of the stick. This year, the Assets Recovery Agency has been more successful than it was in the past. I take in part his point about much of its success being stuck in the courts pipeline. In one sense that is quite proper; it comes down to safeguards, although there are abuses. However, with the greatest respect, that is not a reflection on the success or otherwise of the ARA, either within or outwith the Serious Organised Crime Agency. As he suggests, the current situation owes more to the shenanigans—that is probably the technical term—of assorted defence lawyers who are seeking to defend their clients and prevent the recovery of their assets and ill-gotten gains. I honestly do not think that that charge could be levelled unduly at the ARA, or that the issue would lead to a lack of success on the part of the ARA. Those are matters that the ARA, SOCA and, more generally, the Home Office are looking to take forward with colleagues in the criminal justice system. Although there might be abuses around the edges, people are perfectly entitled to pursue objections to their ill-gotten gains being recovered, and we do not want to throw the proverbial baby out with the bath water.
I agree with the Minister entirely, and I certainly do not suggest that any of the practices to which I referred have been used improperly. My point is that I do not see how we can be confident that the provisions in the Bill will result in SOCA being more likely to recover the proceeds of crime than the ARA was; what I am suggesting to the Minister is that the provisions do not go to the root of the problem of why the ARA has not been successful.
I would say the contrary: I think that they do, but I do not accept that the ARA has not been successful. In terms of getting hold of the readies—to once again use a technical term—I accept that the ARA has been delayed somewhat in the court system. We are working with prosecution authorities and others, based on the experience of the ARA’s relative success to date, to bring forward in the Bill particular proposals that we think will go towards addressing the issues to do with recovery through the courts that the hon. Gentleman agrees are problematic. I am sure that that can be explored in much more detail in Committee.
The hon. Gentleman is right in the sense that we think that what is outlined in clauses 68 to 76 will, at the very least, start to go to the heart of the problem to do with recovery orders working their way through the criminal justice and court systems. It may be that colleagues in the other place will come up with many more wonderful ideas; they certainly have not done so yet. The Public Bill Committee will determine that. I am all ears when it comes to proposals to try to do more to unblock the system, while still protecting the perfectly reasonable safeguards that apply to people, whether in respect of criminal matters or other matters. He is right that we can hopefully get more and more through the machine than we have done to date, but I do not think that the issue comes down to a lack of success on the part of SOCA or the ARA.
I am grateful to the Minister for giving way; he is being extremely generous. Given that what he rightly calls legal shenanigans have prevented the ARA from getting its hands on £85 million of the readies to which he referred, has he made any estimates of what the legal costs are likely to be, both to the taxpayer and directly to the Home Office, of challenges to orders that are brought in as a result of the Bill? Presumably the Home Office has made an estimate of those costs; will it share that estimate with us, so that we can be made aware of it?
Well, if that information is to hand—and I do not know whether it is or not off the top of my head—I will certainly make sure that it is available to the hon. Gentleman, but I repeat that we think that elements in the Bill will improve the situation and take it forward, so that it is made far better than it has been, not least for the reasons suggested by the hon. Member for Rugby and Kenilworth (Jeremy Wright).
As we have said, we plan to merge the key functions of the Assets Recovery Agency with the Serious Organised Crime Agency. To return to the point made by the hon. Member for Rugby and Kenilworth, we believe that that will maximise the skills and expertise of both agencies. We have given unequivocal assurances that there will be no reduction in resources or effort on the recovery of criminal assets in Northern Ireland, particularly after the merger.
We are making provision—again, this will help with the hon. Gentleman’s point—for the Asset Recovery Agency’s powers to pursue the civil recovery of the proceeds of crime in the High Court to be shared between SOCA and the main prosecuting bodies. Extending those powers to prosecutors will enable them to be used more often against more people’s assets. The Asset Recovery Agency’s responsibilities for the training and accreditation of financial investigators will transfer properly to the National Policing Improvement Agency.
The Bill also further extends powers in the 2002 Act. These include allowing suitably trained and accredited financial investigators to seize and detain suspect cash and to execute search warrants. Financial investigators will also be given investigation powers to help prepare their cases for the forfeiture of detained cash before the courts.
To improve asset recovery performance and processes further, we aim to table in Committee some additional amendments to the Proceeds of Crime Act. We propose to give the main prosecuting agencies investigatory powers in civil recovery proceedings. We will also enable prosecutors to represent the police and Her Majesty’s Revenue and Customs in cash forfeiture proceedings in the magistrates courts. To protect the value of a defendant’s assets under restraint, we propose to amend the provisions on the appointment of management and enforcement receivers. Finally, we need to make some amendments to the Serious Organised Crime and Police Act 2005 to support the transfer of the Assets Recovery Agency’s functions to SOCA and the prosecuting bodies. All those measures will improve asset recovery as a result of the merger.
Clause 77 makes certain surveillance powers that are currently available to Her Majesty’s Revenue and Customs for investigations into serious crime involving ex-Customs and Excise matters also available to HMRC for investigations into serious crime involving ex-Inland Revenue matters. That is a consequence of the merger of the two organisations.
The Under-Secretary of State for Northern Ireland, my hon. Friend the Member for Wythenshawe and Sale, East (Paul Goggins), has made clear the desire to provide Her Majesty’s Revenue and Customs with statutory authority to disclose its information to relevant bodies for civil enforcement purposes connected with the recovery of proceeds of crime. HMRC would then be allowed to share information with the Criminal Assets Bureau that operates in the Republic of Ireland. The result would be better progression of cases where we are seeking to restrain or freeze assets belonging to individuals suspected of being involved in organised crime, both in Northern Ireland and more widely across the UK.
That is an outline of the substance of the Bill. I said at the start that I wanted to deal with two aspects that were imposed on the Government in the other place and which, for reasons that I shall set out, we shall resist.
I am grateful to my hon. Friend for his generosity. Under schedule 1, one of the offences defined as a serious crime is people trafficking. There are also certain prostitution offences that come under the rubric of serious crime. The United Kingdom is a signatory to European convention against people trafficking, but has not yet ratified and implemented that convention. Can my hon. Friend tell us what the timetable is for the United Kingdom to act seriously and promptly on that important convention?
As my hon. Friend knows, we have already taken various steps—including taking forward the UK action plan on human trafficking and, during our presidency a couple of years ago, pushing the European action plan on trafficking. To be fair, the police, through the Association of Chief Police Officers and by other means, have shown over the past couple of years that they are taking the matter extremely seriously. All that is to the good and we will push on in those matters. As and when ratifying, rather than just signing, the convention means something substantial for the development of public policy, we will do so. It is important to get all the assorted building blocks in place through the action plans and in other ways prior to ratification.
My hon. Friend knows—I cannot remember the details—that a range of other nations have signed, but the last time I looked at the matter, Moldova had managed to ratify and that was it. I am not sure if that is still the case. A few more states may have ratified—[Interruption.] My hon. Friend helpfully heckles from a sedentary position. It is important, through European channels and more generally, to push people to take action on human trafficking under the law and by policing, rather than only on one level—the entry-level gesture of ratification—without substance in terms of development behind it.
Before the Minister moves on to the two issues that he intends to raise, can I take him back to the part 1 issue of serious crime prevention orders and the Liberty briefing? He will be aware that the Joint Committee on Human Rights shared concerns not only about legal certainty and the equivalence to a determination of criminal charge, but reference to a civil standard of proof. The Government maintain that that is a flexible standard that can be raised as high as that of beyond reasonable doubt. However, if, for issues relating to clauses 1 and 2, the standard will always be that of beyond reasonable doubt, would it not be a good idea to make that clear in the Bill for reasons of understanding our law and what the Government are about, and to avoid allegations relating to Paris Hilton, which the Minister mentioned earlier?
The hon. Gentleman will know that there is a hierarchy involved. As my noble and learned Friend Baroness Scotland made clear in terms of McCann, we expect that the standard of proof required on the question of whether a person is involved in serious crime will be the same as that in criminal cases, but there may well be different standards in terms of prevention. I do not resile from what I said about the Liberty briefing and what I thought were rather poor assertions, but, as I said to the hon. Member for Bromley and Chislehurst (Robert Neill), that dimension and the nature of that hierarchy can be properly explored more fully in Committee.
The last two points raised in the other House—not with the support of the Government—were those of intercept evidence and the power to search for firearms. I shall deal with the latter issue first. Clause 78 was introduced into the Bill by amendment. The fact remains that there is already sufficient legislation in place to search for firearms. Section 47 of the Firearms Act 1968 gives powers to detain and search, and a constable may enter any place to conduct the search. Powers to seal off an area are provided by section 60 of the Criminal Justice and Public Order Act 1994, but under strict safeguards. ACPO has confirmed its very strong view that it is fully satisfied with its powers in that area and is concerned about the wide extension of powers that the amendment provides. Liberty has also expressed its concerns, agreeing with the Government’s position on the total lack of safeguards in this clause. [Interruption.] Well, to be fair and as I said at the beginning, what Liberty said about the orders earlier on in the Bill was unusually sloppy, lacked intellectual rigour and was assertion rather than fact, and I meant “unusually” as well as all the other words. I take very seriously what Liberty says, which is why I am all the more disappointed when I have cause to be.
Under the power to which I referred, any constable could decide to seal off an area with no requirement for referral to a senior officer, no indication of the extent of that area and with no time limits specified. On balance, that is a reckless provision that would disproportionately affect our communities and potentially result in public disorder, and it is not terribly well thought out. Appropriate, proportionate, intelligence-led policing, such as that conducted by Operation Trident in the Metropolitan area, has proved to be successful in tackling gun crime. Stigmatising certain communities by cordoning off areas in the way provided for in the clause would not achieve that goal, advance what is already on the statute book in terms of searching for firearms, or help in any way to develop community cohesion. For those reasons, as the House has probably already worked out, we intend to remove the clause from the Bill in Committee.
Let us consider intercept as evidence. The amendment, which was inserted in the Bill on Report in another place, is simple. It would alter the Regulation of Investigatory Powers Act 2000 to allow the prosecution to apply to the court for permission to use intercept as evidence in terrorism or serious crime cases. Unless or until an application was made, the current ban on intercept as evidence would stand. The amendment assumes that if a decision were made to offer intercept as evidence, regular public interest immunity provisions would be sufficient to protect sensitive material from disclosure. We believe that that is a rash assumption.
The Government opposed the amendment because we believe it to be unworkable and deficient. It is unworkable because it provides none of the safeguards—beyond public interest immunity—that the intelligence, law enforcement and communications agencies have told us are essential to protect capabilities, techniques and resources from disclosure if intercept were used evidentially. I believe that even those who support the thrust of such an amendment accept that there is probably a need and a desire to go beyond the current public interest immunity provisions to allay those concerns.
We believe that the amendment is deficient because the way in which the provision could be operated in the cases at which it is aimed—terrorism and serious crime—without falling foul of the European convention on human rights is far from clear. It is argued that the proposal is “permissive” and that we do not have to use it, but that is no excuse for bad legislation, especially when it fundamentally undermines the existing regime and the “equality of arms” principle that underpins it. That would undermine our ability to protect what we do.
Successive Governments have wrestled with how to ensure that a legal model could be simultaneously fair to the defendant, robust in the protection of sensitive material and practical enough to operate without diverting vital front-line security resources into servicing disproportionate administrative requirements. The Government’s position is well established. We support changing the law to permit intercept as evidence—but only if the necessary safeguards can be put in place and the potential benefits outweigh the risks. However, experience so far during the Bill’s passage has taught us that we need to be more open in our determination to find a workable solution.
Two years ago, when a substantive review previously took place—I appreciate that, even then, the world was slightly different in terms of terrorism—it was believed that there were no cases of serious crime or terrorism whose outcome would have been affected by the use of intercept as evidence. It is right and proper to make progress on that work. I believe that it is right and proper to work the matter through to a conclusion. We have therefore agreed to set up an independent review of the subject on Privy Councillor terms. Not only are we convinced that the politicians should come together on matters of national security, but we want to ensure that we work together to solve the difficulties of that highly complex matter, and not try to pretend that they do not exist.
We are sure that the use of intercept as evidence, as suggested by Lord Lloyd’s amendment in another place, is unworkable and deficient and we will try to get the relevant provision thrown out in Committee. We are not offering a Privy Council review in the context of the autumn’s proposed terrorism Bill as a ruse simply to get through the Committee stage of the measure that we are considering. However, the Lloyd amendment is substantially lacking in thought and rigour in offering a way forward for intercept as evidence. We hope that that view commands the support of the House.
The two main parties are conducting work on the matter as we speak. I am not entirely sure of the extent to which the Liberal Democrats have been drawn into that partner process; we have engaged with them up to now. I hope that we can reach a position whereby progress can be made on the matter or it can be set aside, whatever the review’s conclusion and the Government’s response to it, rather than tackling it in a slipshod and deficient manner in the Bill.
I therefore hope that, when we debate the current amendment, we can agree that that is not the way forward. By the time the issue returns to the House, we will all be better informed by the outcome of the review. We are trying to take things forward through announcements on the review, as in last week’s announcement, and I suspect that that will happen before the Bill goes into Committee, let alone its Report stage.
Will the Minister further clarify his understanding of the mandate of the review mechanism to which he alluded and which will be held on Privy Council terms? Is it his understanding that the review mechanism would have as its objective making the proposition of the admissibility of intercept evidence in court a workable one—in other words, that the mandate is to make that mechanism work by overcoming the legal and other technical objectives—or does he have a looser view of whether it is either desirable or possible in the first place?
As I understand it and as the hon. Gentleman will know, that stems from initial discussions between the Prime Minister and the Leader of the Opposition and subsequent discussions, albeit cursory, with the hon. Gentleman himself, with the right hon. Member for Haltemprice and Howden (David Davis) who speaks for the Conservatives, the Home Secretary and me. The answer is both. Clearly, the first mandate—an interesting word, but let me put that to one side—relates to whether there is a substantial and viable case, which would have to include the safeguards and other elements that are part of the debate, for taking forward intercepted evidence within an appropriate legal framework. Clearly, if the answer to that is yes, the substance of the hon. Gentleman’s point becomes the second part of such a review. If at that stage the answer, given the concerns of the security services, the police and others, is no, at least it takes the issue to termination—for want of a better phrase.
I think that that is a two-stage element—although they almost run together, so it is not really two stages. Is there a way to take these matters forward and use intercept as evidence in a way that probably goes beyond public interest immunity to what amounts to PII plus, plus or whatever? Some work has been done on that already. If the answer is yes, we should proceed as the hon. Member for Sheffield, Hallam (Mr. Clegg) suggests. If the answer is no, and everyone is convinced that it is no, that clearly brings the matter to an end.
I know that the Government’s view is sometimes characterised as being utterly against using intercept evidence, but in official terms at least our position has always been that we can look at such evidence if the framework that the hon. Gentleman suggested can be laid out. I have to say that from what I have seen I am not convinced that it can be, but the matter is worth exploring further and in more detail through such a vehicle as a review across party lines on Privy Council terms. I think that that is the way to take things forward.
That aside, my starting premise would certainly be that Lord Lloyd’s amendment to the Bill is not the right way to take the issue forward. A Public Bill Committee would not be the place—almost on the hoof—to determine, get in place and correct the deficiencies in the Lloyd amendment. Therefore, we are very clear that we want to take the matter further in the terms that I have suggested. As my right hon. Friend the Home Secretary outlined last week in respect of other provisions for a potential terrorism Bill, which will not be introduced until at least the autumn, it is appropriate to secure a cross-party basis for taking this forward. We thus have the time and scope for such a review, alongside all the other elements that go to the terrorism part—rather than serious and organised crime part—of the Government’s agenda. I hope that that, and not this Bill, will be viewed as the most appropriate context for dealing with something as important as intercepted evidence.
I welcome the review on intercept evidence and I quite understand my hon. Friend’s reservations about the way in which the Lloyd amendment has been put forward. If possible, we should look very seriously into allowing intercept evidence, but with the appropriate safeguards to which my hon. Friend referred. May I draw him to another point before he closes his remarks about this Serious Crime Bill? What thought have the Government given to the Bill allowing post-charge questioning—I believe that it should—in relation to serious crimes?
That is an entirely fair point. My hon. Friend will know that we are going down that route in the proposed terrorism Bill in the autumn. Rather than introducing such a measure for serious and organised crime in a knee-jerk fashion, it would be better to explore the possibility in the future. For completeness, in public policy terms I would rather see how effective such a measure was in terrorism cases and, as it were, work backwards to determine whether it might be appropriate for serious and organised crime. It is certainly a matter worthy of subsequent exploration.
I am sorry that my speech has been inordinately long, but I hope that the House will acknowledge that I have taken a great many interventions—I almost said “interceptions”—as is right and proper at the opening of a Second Reading debate. I am sure that whoever works on the Bill—who knows what is going to happen in the next couple of weeks?—will enjoy themselves enormously. It will have profound implications for taking forward our fight against serious crime. Other than for the amendments on searching for guns and on intercept evidence, both of which we shall seek to overturn, I commend the Bill to the House.
The whole House will acknowledge the need to deal with serious crime, the economic and social costs of which are estimated to be between £20 billion and £40 billion a year. The assets derived from crime represent about 2 per cent. of the UK’s gross domestic product. Let us not forget the human suffering caused by the violence and fear that organised crime breeds. These are not victimless crimes; the fact that the misuse of class A drugs is estimated to cost £13 billion a year is evidence of that.
The question is whether the Bill will be effective in dealing with these problems. We must ask why there is another Home Office Bill and how thought through it is. It is only two years since the passing of the Serious Organised Crime and Police Act 2005. It has been pointed out that the Government are focusing on legislative solutions. The Home Office has introduced 62 pieces of legislation since 1997, including six Bills in the most recent Queen’s Speech, not all of which we have seen. Twenty-three of those pieces of legislation have subsequently been repealed, either wholly or in part. In the same period, more than 3,000 new offences have been created, 430 of them by the Home Office. The creation of 3,000 new offences works out at a new offence for almost every day that Labour has been in power, and it is twice the rate seen under the two previous Conservative Administrations. The Government have not yet worked out that the effectiveness of the law enforcement agencies and police forces is at least as important as the legislation that they seek to pass, often in haste. When legislation is necessary, however, it is important that it should be proportionate and effective. That is the yardstick against which we will judge the Bill.
Part 1 of the Bill immediately gives us a problem in that regard. The Government tell us that the proposed serious crime prevention orders are aimed at the Mr. Bigs—the 400 major crime bosses in the UK who have amassed a criminal wealth of approximately £440 million. The orders are a new type of civil order, similar to antisocial behaviour orders. Indeed, they have been nicknamed “gangster ASBOs” or “GASBOs”. They will be made by the High Court, which could impose a broad range of prohibitions, restrictions or requirements on an individual or business. They could last for up to five years, and could be renewed indefinitely. Breach of an order would be a criminal offence carrying a sentence of up to five years’ imprisonment. They appear to be a hybrid of control orders and ASBOs. As such, they are hardly likely to recommend themselves to Conservative Members.
We have two principal concerns about the proposals. First, how effective will they be? After all, we know that more than half of all ASBOs are breached. Some 35 per cent. are breached more than five times and 79 per cent. of those who receive them have previous convictions. The Youth Justice Board report described ASBOs as being worn by youths like a
“‘badge of honour’, rather than addressing the causes of”
Most seriously, MORI research shows a lack of public confidence in ASBOs. An Ipsos MORI poll published in June last year, six months after the launch of the respect action plan, found that nearly half the public do not think that ASBOs are effective in stopping antisocial behaviour. Nearly a third of people subject to control orders have absconded. Since the beginning of 2006, 19 people have been subject to control orders, six of whom have absconded and all of whom remain at large. Given the record of ASBOs and control orders, we view the prospect of a new fusion of the two with a certain amount of concern about their effectiveness.
Our second concern is about the underlying principles governing the orders. They are predicated on the notion that at some future point in time, a person will commit an unspecified criminal offence and needs to be prevented from doing so. Hon. Members might have seen the film “Minority Report”, in which the system of punishing someone with imprisonment after a crime has been committed has been replaced with pre-crime, which operates before a crime takes place in an attempt to prevent it from happening. It is no longer fanciful to say that that concept of pre-crime is being introduced into our legal system today. The only difference is that Tom Cruise relied on mutants who foresaw the future, whereas the Minister and his proposals will rely on hearsay evidence to back up the new gangster ASBOs.
I think that I am following the hon. Gentleman’s argument carefully and that I understand it, but he said that there will be reliance on hearsay evidence. Will he point me to where in the Bill it says that hearsay evidence—or GASBOs, or whatever they are called—will be relied on?
The hon. Member for Wolverhampton, South-West (Rob Marris) might also care to note that provision is made in the Criminal Justice Act 2003 to allow the admission of hearsay evidence even within criminal proceedings. It is not a new breach of the original system of admitting evidence into quasi-criminal-type proceedings. He needs to read one of the 64 Bills that have been passed before this one.
I am grateful to my hon. and learned Friend for his assistance.
The concerns about the measures, which blur the boundary between the civil and the criminal law, enabling criminal sanctions to follow from doing something that is not in itself a crime, have not just been expressed by the civil liberties organisation Liberty, the advice of which the Minister sought to discredit. They have also been expressed by the Law Society, which said:
“We fear the proposed orders are a measure of expediency to deal with cases where a prosecution is not possible because there is insufficient evidence”.
The Minister made great play of the fact that the measures are not punitive, but as the House will know, it has become common for ASBOs to be used as an easier alternative to criminal prosecution, because it is more straightforward to collect and rely on hearsay evidence than to assemble the necessary evidence to secure a criminal conviction.
Can my hon. Friend think of a reason why the Serious Organised Crime Agency might wish to prosecute? Under the Bill, criminals’ assets can be seized, they can be labelled with the stigma of guilt of serious crime on the balance of probabilities, and they can be subject to the most onerous restrictions on their liberty. Why would anyone want to go to the trouble of lengthy criminal proceedings if all that could be done on the balance of evidence in an ex parte hearing on affidavit?
My hon. and learned Friend makes a good point. Just as the Government make great play of their desire to take cases out of the courts in developing their summary justice programme, of which they regard ASBOs as being a part, there is no doubt that in this instance they seek an alternative means of dealing with serious criminals. That may mean that the proper avenues of court procedures will not be followed, and that no safeguards or checks will enable the House to monitor or assess on an ongoing basis the extent to which these provisions are being used for their proper purposes.
Despite Government concessions in the House of Lords, the raft of restrictions that GASBOs could impose is extensive. They include restrictions on those with whom a person can communicate and on where a person can live, work or travel. They may also include requirements to answer questions, provide information or produce documents. The Government say that the High Court will provide oversight, but as Mr. Justice Sullivan said in the context of control orders, to which these measures bear some relation, judicial involvement in the making of such orders can be no more than a “thin veneer of legality” which “cannot disguise the reality”. As was pointed out earlier, the definition of serious crime includes
“fishing for salmon, trout or freshwater fish with prohibited implements”.
We thought that the Bill was designed to deal with the untouchables, the modern-day Al Capones; now it seems that it could be used to target Pop Larkin.
The Secretary of State can also modify the list by order, which the Conservatives consider unacceptable. If there is to be an extension of the crimes to which these measures can apply, given the supposed serious nature of those crimes, it should be made by primary legislation. We will pursue that point if the Bill reaches Committee.
As a former deputy chief constable, John Stalker, said,
“criminals should be dealt with under the criminal law…super-ASBOs, as these are being called, are not the answer to heavyweight criminals. They may be OK for hoodies on the street”—
but, he said, they were not appropriate for more serious criminals.
These are the key questions. Where are the safeguards to ensure regular review of the orders? They do not exist in the Bill. On what basis will the effectiveness or reasonableness of the orders be judged? In Committee, we will consider measures to ensure that such safeguards are placed in the Bill.
In its report on the Bill, the Joint Committee on Human Rights commented:
“In our recent work on counter-terrorism policy and human rights we have drawn attention to the unsustainability in the long term of resort to methods of control which are outside of the criminal process and which avoid the application of criminal standards of due process. We are concerned that the introduction of SCPOs represents a similar step in relation to serious crime generally. In our view, the human rights compatible way to combat serious crime in the long run is not to sidestep criminal due process, but rather to work to remove the various unnecessary obstacles to prosecution, for example by relaxing the current prohibition on the admissibility of intercept material”.
That leads me to clause 4 and to schedule 13, which was inserted in another place against the Government’s wishes. Both provisions relate to the use of intercept evidence. There are already a range of practical measures that would strengthen our ability to bring terrorists to justice, and we believe that the introduction of intercept evidence in court is the single most effective step that the Government could take today to make the country safer.
The Home Secretary says that intercept evidence is not a silver bullet. Of course; there are no silver bullets when it comes to dealing with terrorism. But why is the UK one of only two countries in the democratic world that does not use intercept evidence? Many arguments have been put against the use of such evidence. They include the argument that terrorists will cotton on to what is happening and that the means of the intercept will be revealed. But as Andy Hayman, the assistant commissioner of the Metropolitan police in charge of counter-terrorism, told the Home Affairs Committee:
“I think that this is now well and truly worn-out because I think most people are aware of that. It does not stop them still talking but they are aware of the methodology so that is a lightweight argument.”
With the greatest respect, I am saying that the hon. Gentleman is showing his ignorance by saying that such an argument about interception techniques and how criminals and terrorists attempt to resist them is now lightweight. That simply shows that he does not understand the range of intercept techniques that now exist, any number of which, to be fair—I am more than willing for the hon. Gentleman to have the appropriate briefings—are not common knowledge to the terrorists and serious criminals but would be were we to go down this road, without being covered in the ways that I have suggested.
Quite clearly, the Minister was seeking to dismiss the comments of the assistant commissioner, who told the Home Affairs Committee that he had changed his view and concluded that the time had come to review the use of intercept evidence.
The assistant commissioner also helped to knock down a number of the other arguments against the use of intercept evidence. Another common one is that it would impose an undue burden on the police and intelligence agencies. The assistant commissioner said that this was
“a fairly moot point now, given that you can be very selective about the things you are going to transcribe if you are very precise on your investigation and focused.”
The fact is that the arguments for using intercept evidence are increasingly accepted by a large range of people, including the Attorney-General, the Director of Public Prosecutions and even the Government’s terrorism adviser, Lord Carlile, who has accepted that the issue needs to be reviewed.
To reinforce my hon. Friend’s argument and to close down, I hope, the suggestion that the assistant commissioner’s remarks were somehow off the cuff, Assistant Commissioner Hayman’s remarks were specifically endorsed by the Metropolitan Police Commissioner, Sir Ian Blair, who reported recently to the Metropolitan Police Authority in exactly the same terms. I am sure that my hon. Friend is also aware that there is an increasing feeling among the police and other agencies that a sensible approach to the public interest immunity regime would be an adequate means of dealing with the safeguards. I appreciate that my hon. Friend may want to look at this issue in Committee, but does he agree that, increasingly, the leaders in British policing recognise that this is an appropriate way forward?
I am grateful to my hon. Friend. Andy Hayman concluded by saying that the fact that we did not allow the use of intercept evidence made us
“look a little bit foolish that everywhere else in the world was using it to good effect.”
His views on the matter were quite clear.
As I mentioned, almost every other major country uses intercept evidence to some effect. In the United States, it is used in nearly all counter-terrorism and organised crime prosecutions and is often the decisive evidence in relation to prosecutions.
The Government have not had a coherent view on this issue. In his statement on control orders last month, the Home Secretary said that the Government had been looking at allowing the use of intercept evidence in court for a considerable time but that
“both Opposition Front-Bench teams know that the disadvantages so far outweigh the advantages that what they are suggesting meets with complete opposition from our security and intelligence services. They are the front line, charged with the national security of this country. Consistently, time after time, they have made it clear…that they are opposed to that approach.”—[Official Report, 24 May 2007; Vol. 460, c. 1432.]
The Chancellor, however, has recently briefed journalists that he favours the use of intercept evidence. Judging by the Minister’s comments—and his remarks from a sedentary position—I wonder how open minded the review that the Prime Minister has conceded following the request of my right hon. Friend the Member for Witney (Mr. Cameron) will be about the use of such evidence. Therefore, we must examine the premise of the review.
We are grateful that the Government have now accepted the proposal on Privy Council terms. The committee of Privy Councillors that looks at this issue should be a cross-party committee and it should be balanced—there should be no overall control by one party. No one serving in Government should be on the committee; its members should be Privy Councillors with expertise in the issue. The committee must report well before November, in advance of First Reading of the new counter-terrorism Bill, to allow time for provisions to be incorporated in it, if necessary. Crucially, there must be a presumption that the Government will accept the recommendations the committee makes once it has examined all the evidence and arguments and taken account of any concerns that those in the intelligence services might continue to have. If the committee finds that the use of intercept evidence is necessary, the Government should accept that. We want to be sure that the Prime Minister, having accepted the proposal, will set up a committee that looks objectively at the evidence. That is why I view the Minister’s remarks and the Home Secretary’s previous remarks on this issue with some concern.
In view of that, we should not give up the provisions on the use of intercept evidence that Lord Lloyd added in Committee. We need at the very least to have reassurances on how the Privy Council examination of the use of intercept evidence will be conducted and on its terms of reference before we can allow the view of the other place to be overturned.
It is my understanding that discussions between the Prime Minister and the Leader of the Opposition are continuing and that matters such as those raised by the hon. Gentleman will be resolved, at least in outline, by the time we are in Committee. If that is not the case, I will write to the hon. Gentleman to make that clear. However, I am sure that discussions are ongoing, and that they address precisely the matters the hon. Gentleman mentions, such as the committee’s composition. It is right and proper that such issues are cleared up before the Committee stage, although how the hon. Gentleman approaches particular clauses in Committee is up to him. I am just trying to be helpful, as ever.
The Minister is, of course, being helpful, as ever, and I am grateful for his clarification. However, he will understand that we will reserve a decision until we have seen how the Privy Council review is conducted. It might be more appropriate for Lord Lloyd’s amendment to be considered on Report, when all Members can contribute.
I entirely agree with my hon. Friend about the Privy Council committee and its composition, and perhaps through him I might invite the Minister to consider the following point. Does my hon. Friend accept that it would also strengthen the committee if we made sure that among its members were not only Privy Councillors but members of the senior judiciary, some of whom are Privy Councillors? They have experience in criminal matters, particularly the operation in practice of public interest immunity applications.
That is a very interesting suggestion. The crucial criteria should be that members of that Committee have experience and expertise, and that the Committee be balanced; it should not be capable of being controlled in any way by the Government. We await the Prime Minister’s proposal.
Part 2 of the Bill deals the reform of the law relating to inchoate offences and follows Law Commission advice. In the main, it seems to us to be sensible, and we will examine proposals relating to incitement, for example, in Committee.
Part 3 begins with provisions on information sharing within the public sector and between the private and public sectors, with the purpose of preventing fraud. The Government claim that this is a narrow and targeted provision to prevent fraud. However, we are concerned that extensive powers are being taken that could allow for the first time widespread data sharing between the private and public sectors, which would overturn the basic data protection principle that personal information provided to a Government Department for one purpose should not, in general, be used for another. Instead, the principle appears now to be that information will normally be shared in the public sector, provided it is in the public interest. The Bill therefore clears the way for a large-scale data-matching exercise, even though a Home Office consultation paper published last year acknowledged that many public bodies feared that such operations could be seen as fishing expeditions. We believe that such procedures can be justified only on a crime-by-crime basis. As the former chief constable of the west midlands, Lord Dear, said in another place, there is
“no problem with exchanging data on a target organisation or person”,
“To go on a data-sharing fishing expedition infringing the privacy of millions on the off-chance of catching a few, admittedly quite big, fish would be a step too far.”—[Official Report, House of Lords, 7 February 2007; Vol. 689, c. 757.]
The Joint Committee on Human Rights has warned that, as drafted, the power of public authorities to share information with anti-fraud organisations could breach article 8 of the European convention on human rights, relating to the right to respect for private life. The Committee was also concerned about the absence of strong safeguards to ensure the proportionate use of data sharing. It proposed two limits on the powers, the first of which was to limit the width of the power, for example by specifying the information that could be disclosed and the categories of people to whom it could be disclosed, in place of the open-ended authorisation of disclosure to any person to whom disclosure happens to be permitted by the arrangements of a particular anti-fraud organisation. The Committee’s second proposed limit was to introduce additional safeguards in the Bill such as defining the threshold for reporting information on suspected fraud, limiting disclosure so that only information on those suspected of fraud would be shared.
In Committee, we will need to consider these proposals and the question of the appropriate limits, to examine the code of practice that the Government promised in another place but which they have now told us will be published when we are in Committee, and to examine the extent to which the code of practice will allay concerns and mean that limits need not be placed on the operation of these provisions.
I thank the hon. Gentleman for his generosity in giving way. On his understandable concern about data fishing—not with a “ph” but with an “f”, to stay with the fishing theme and our earlier discussion involving salmon fishing—would that not be covered by schedule 7? It states:
“A data matching exercise may not be used to identify patterns and trends in an individual’s characteristics or behaviour which suggest nothing more than his potential to commit fraud in the future.”
That was not the view of the Joint Committee. I am open-minded about whether the Government can reassure us that that provision will prevent fishing. Our concern is to ensure that fishing is not allowed. The provisions should be able to be used only to identify existing patterns of criminal activity. We will examine those detailed issues in Committee.
We understand the purpose of the provisions and their potential value, but the human rights considerations are serious and need to be addressed, not least because clause 66 suggests that not only relatively innocuous personal data, but sensitive data could be shared. That includes information on racial or ethnic origins, political opinions, religious beliefs, physical or mental health and sexual life. Indeed, the Bill specifically amends the data protection legislation to achieve that widened definition of data that may be shared. What is the justification for widening the definition to include sensitive personal data that do not immediately appear to relate to fraudulent activity? We will seek reassurances from the Government on those points and, if necessary, amendments to the Bill. The Minister may be able to give us those reassurances when he winds up or, more likely, when we examine the detail of the Bill in Committee.
We are mindful of the Information Commissioner’s warning that we are sleepwalking into a surveillance society. The House has to be careful before passing wide ranging powers that could allow considerable intrusion into people’s private lives and the data that are held on them in breach of the principle of the data protection legislation. It is right that we should consider these proposals very carefully.
Chapter 2 of part 3 relates to the proceeds of crime and the abolition of the Assets Recovery Agency. As an example of the Government’s legislative frenzy, the ARA was set up only in 2002 and has since been subject to various changes through legislation. Five years later, it is to be abolished, but that is perhaps not surprising given the National Audit Office’s report in February, which pointed out that the ARA had recovered £23 million against costs of £65 million. The Minister will have to explain how simply dismantling the agency and reconstituting it within SOCA will make it more effective. The deckchairs are often moved around the deck of a sinking ship, but we want to know how the proposals will improve performance in assets recovery. We will also seek reassurances about the effect on Northern Ireland, where the agency has been more successful and is valued by the Police Service of Northern Ireland.
We have cause to be concerned about the placing of the ARA into SOCA. The former has been in operation for just over a year and we are concerned about its accountability. It has a budget of nearly £400 million, capital funding of £43 million and 4,500 full-time equivalent staff. However, the House has had no opportunity to debate the effectiveness of the agency since it was established or since it has reported. The ARA is meant to be accountable to Parliament.
I concede that it is too early to assess SOCA’s effectiveness properly, and that we can take some positives from its first annual report, such as the volume of drugs that it has seized and the stronger international co-operation that it has fostered. Concerns remain, however: the agency has prosecuted fewer cases in the UK courts than its predecessor, and it has missed its targets for seizing criminal assets. Reportedly, it has suffered from poor morale, too much bureaucracy and staff problems. Questions have been asked about its cost-effectiveness too as, so far, it has achieved fewer convictions of organised criminals than its precursor, even though it has more than twice the budget.
Perhaps SOCA can answer all those questions, but it is very important that the House should have an opportunity to assess its effectiveness, especially before we accept a proposal to place within it the already not very successful ARA. We shall have to look at all those matters more closely as the Bill makes its way through the House.
Finally, clause 78—part 3, chapter 4—provides a new power to seal off an area and search it for firearms. The Minister said that this was another measure that had been imposed on the Government against their will, but it is pretty rich of the Government to say that ACPO did not ask for it. The Minister told us that ACPO had said that the power was unnecessary, but what about the idea for a new stop-and-question power that he floated in the press? It was dropped unceremoniously a few weeks later, but did the Government take ACPO’s view into account then? No, of course not. The Government are happy to pray in aid ACPO’s opinion when it suits them, but they are equally happy to float a proposal and gain a good headline without even having the courtesy to talk to ACPO beforehand.
We need to examine the new power on its merits. The Minister described it as a “reckless” provision, but we will have the opportunity in Committee to hear his explanation of why he believes that the existing powers are sufficient, and to look at the issue in a rather more sober manner.
The Bill is typical of the Government’s piecemeal approach to dealing with crime. The promised Criminal Justice Bill has not yet emerged, even though The Sunday Times promised us in January that it was to be the Prime Minister’s final assault on Britain’s thug culture. We have had a series of Home Office Bills that have been badly thought through and incomplete, when what we need is more effective action by the agencies concerned, and more thought about the proposals brought before the House.
Despite the scrutiny of the Bill undertaken in another place, some serious questions remain, such as the implications for civil liberties of data sharing and the justification for, and the reach of, the serious crime prevention orders. In addition, we will need to debate the use of intercept evidence until we can be sure that the Privy Council committee is looking at the matter.
Those are all issues on which the Opposition want reassurance. We understand the purpose of the Bill and share its aims, so we shall not divide the House, but we reserve our position on crucial issues, especially those relating to civil liberties. The Bill’s progress will depend on what the Government have to say to us in Committee and on Report.
It was a pleasure to hear what may have been the farewell speech of the Minister for Security, Counter Terrorism and Police in his current capacity, with only 15 days to go until Gordon judgment day—G-day. Perhaps the hon. Gentleman will face ministerial oblivion, or perhaps he will be elevated to a greater role—we await news of his fate with interest. He gave a typically robust performance this afternoon.
It is important to tackle serious crime; offences covered by the Bill include people trafficking and child sex crimes, which have a devastating impact on communities, families and, most important, the victims. I am sure the House would agree that, whether in the media or in one’s community, it is infuriating to see people behaving as though they were immune from prosecution and above the law—the so-called Mr. Bigs. I understand why the Government share the public’s frustration about such people.
Over the past 10 years there has been an explosion in many categories of serious crime. Gun crime has gone up markedly since 1997. Knife crime has risen substantially over the past 10 years; yesterday, we were given a terrible reminder of the devastating effects of people carrying knives. People trafficking has gone up substantially over the past decade. There is no doubt about the problem of serious crime; the question is whether the Bill addresses it as effectively as it could.
Before I get down to the nitty-gritty of the Bill, I shall make three broad observations about what may have informed the Government’s thinking about it. First, it is fair to say that they are hopelessly addicted to what the Prime Minister famously described as “eye-catching initiatives” on crime. I shall briefly revisit the e-mail from “TB” of 29 April 2000, in which he said:
“On crime, we need to highlight the tough measures…we are lacking a tough public message…we should think now of an initiative, eg locking up street muggers. Something tough, with immediate bite which sends a message through the system.”
At that point, obviously thrashing around for a few more examples of what might send out the right media message, he went on:
“Maybe, the driving licence penalty for young offenders”—
after seven years, we have still not seen that one—
“but this should be done soon and I, personally, should be associated with it.”
The reason why I quoted the e-mail so extensively is that the Bill exhibits the same traits. We are being invited to bring into our vocabulary new expressions such as the “serious crime prevention order”—the SCPO, or perhaps there is another way of describing it. Perhaps Ministers did not think that was catchy enough so they came up with “gangster ASBOs” to capture with greater force the essence of the legislation.
It is worth recalling the words of Louise Casey, the Government’s co-ordinator for respect—I did not make up that title. Recently, she was reported as saying that she “punched the air” when she heard the word “ASBO” on EastEnders. That, in a way, sums up very well what the Government regard as the test of their eye-catching initiatives. Do they get mentioned on prime time TV? Do they enter the popular vocabulary? It is not necessarily to do with whether they are as effective as they might be in tackling crime and in passing the test of scrutiny in the House. No matter that in some parts of the country three quarters of ASBOs are now breached. As long as the co-ordinator for respect can punch the air because people watching “EastEnders” know what ASBOs are and regard the action taken by the Government as sufficiently tough, the initiatives will have achieved their objective. This is the era of soundbite and spin—I hope it will last for precisely one more fortnight, but I suspect that it will not—and the Bill has to be seen in that context.
My second observation has been touched on earlier and it is that the Government are hopelessly addicted not only to eye-catching initiatives but to legislation. It is worth stepping back and looking at what the Government have put through the House in this broad field since 1997. Labour has created more than 3,000 new criminal offences, passed 115,000 pages of legislation and introduced more than 50 Bills, including 24 criminal justice measures. In the 60 years between 1925 and 1985, Governments of different colours managed to get by with only six criminal justice Acts, an average of one every decade. This Labour Government have been getting through them at the rate of more than two a year.
If I list the measures in this broad area that have been put before the House in just this Session, you will, Madam Deputy Speaker, get a sense of the legislative frenzy within which the Bill sits. The list contains the Fraud (Trials without a Jury) Bill, the Legal Services Bill, a criminal justice Bill, an asylum and immigration Bill, the Offender Management Bill, a counter-terrorism Bill, the Tribunals, Courts and Enforcement Bill and this, the Serious Crime Bill. It is no wonder that Ministers have little time to run their Departments effectively. They are so busy trying to make a splash with legislation in the House.
My third observation is how hopelessly cavalier the Government are with the foundations of our criminal justice system. What am I talking about? I refer to the very essence of our criminal justice system and the features that, as children growing up in the United Kingdom, one learned to value and regard as important. Those features include trial by jury, the presumption of innocence and the right to a fair trial before an independent court. These are not niceties and added extras, but fundamental protections for the individual citizen from the excessive power of the state and they have been developed over many centuries. We have to be extremely cautious about regarding them lightly and disregarding them quickly in the House.
I shall concentrate my specific comments primarily on part 1 and to a lesser extent on part 3. The big issue that we need to consider today and in the Bill’s remaining stages is that part 1 seeks to restrict the liberties of people who may never have been convicted of any criminal offence. The whole notion of a person being innocent until proven guilty—as I have said, I was always given to understand that it is the fundamental right of every British citizen to start with that assumption made about their guilt or otherwise—has been stood on its head. Instead, the High Court merely has to be “satisfied” or have “reasonable grounds” to issue a serious crime prevention order. That is a considerably lower threshold than innocent until proven guilty and the other safeguards that I have touched upon. That is why the Liberal Democrats tabled an amendment in the House of Lords that would add after the word “satisfied” the phrase “beyond reasonable doubt”. That was rejected in the other place, but we intend to revisit the matter in Committee if the Bill is given a Second Reading.
The Minister in the other place, Baroness Scotland, admitted that what I have described is indeed the case. Let me take the House briefly through the relevant passage of her speech. In exchanges between Conservative Front-Bench Members and the Minister for Security, Counter Terrorism and Police, we were told that the safeguards were rigorous and that there was not as much need for concern as I have claimed. However, Baroness Scotland said:
“These are civil orders, so this involvement will have to be proved to a civil standard. But I know that many of your Lordships will be only too aware—so I hope that noble Lords will forgive me if I emphasise it—that where serious assertions are made, the civil standard can be virtually the same on certain issues as the criminal standard.”
Members should note that she said “virtually the same”, not “the same”, and “on certain issues”, not “all issues”. She went on to say:
“Recent case law has stated clearly that in proceedings like these the court will look at the civil standard as a sliding scale, with the likely standard of proof for these orders being very close”—
just “very close”—
“to the criminal standard of ‘beyond reasonable doubt’.” —[Official Report, House of Lords, 7 February 2007; Vol. 689, c. 729.]
That statement is full of caveats: “virtually the same”, “on certain issues”, “the likely standard”, and “very close”. That falls a long way short of the reassurance that the Minister for Security, Counter Terrorism and Police sought to provide this afternoon.
As an example of the low threshold, clause 2(1) states:
“For the purposes of this Part, a person has been involved in serious crime in England and Wales if he…has conducted himself in a way that was likely to facilitate the commission by himself or another person of a serious offence in England and Wales (whether or not such an offence was committed).”
Again the word “likely” is used and the offence itself does not even need to be committed.
We talked earlier about the amendment from Lord Lloyd of Berwick, which I will come to in due course. When speaking on Second Reading in the other place, he got to the nub of how muddy these parts of the legislative waters are. He said:
“I could understand and sympathise with prevention orders in the case of those who have been convicted of a serious crime as part of the sentence imposed by the court. I could understand prevention orders in the case of those convicted of serious crimes by a foreign court, assuming we can ever find out who they are. That all makes perfectly good sense to me, but I simply cannot understand how one can justify prevention orders in the case of a man who has committed no crime—indeed, who may have done nothing more than facilitate the commission of the crime by others, even though he did not intend to facilitate the crime and even though in fact the crime has not been facilitated, but only made more likely, however one is going to decide that and whatever it may mean.”—[Official Report, House of Lords, 7 February 2007; Vol. 689, c. 741-42.]
We find ourselves in a pretty difficult position when we are trying to legislate on such shifting sands and put in place a legal framework that can stand the test of time and which individual citizens can feel confident about.
Some serious sanctions exist and can be applied. People’s finances and work arrangements, and even their ability to travel internally within the United Kingdom, can be restricted. A wide range of offences are involved, as was touched on earlier. Most people would regard arms trafficking or child sex offences as serious crimes, but the definition of a serious crime is loosely drawn. As has been said many times in the other place and here this afternoon, it includes salmon fishing. I do not doubt that somebody who owned salmon and did not wish it to be fished would be greatly upset by that, but it is hardly in the same category as arms trafficking and child sex offences.
Other acts that are fraudulent and certainly criminal, such as the pirating of DVDs, appear to fall under the scope of the Bill, too. “Serious crime” is very widely drawn indeed; it includes crimes that some people will feel ought to be punished, but that perhaps ought not to fall within the scope of the Bill. Of course, if people fall foul of the sanctions that have been put in place with respect to their internal travel arrangements or work arrangements, and breach their serious crime prevention order, they can go to prison, so a civil offence can lead directly to a criminal sanction.
There is also concern that the measures will be seen by many as a soft alternative to prosecution, and that people who ought appropriately to be convicted, after evidence has been collected and a court case has ensued, will not go through that full, rigorous process. The thinking appears to be, “We know who is causing the problems, and we are keen to get them, one way or another; if we cannot get them through conventional means, we had better devise some other means of catching them.” That is a difficult basis on which to put together criminal justice legislation, and it also means that some serious offenders who ought to feel the full effects of the law may well end up getting away with far softer punishments than they would otherwise have had.
Part 3 of the Bill concentrates on fraud and data sharing. Like everyone else in the House, I deplore fraud, and I accept the arguments often made to say that it is certainly not a victimless crime; all of us can, collectively, be victims of it in many different ways. There are occasions when I wish that the Government, in putting in place schemes such as tax credits, would ensure that they were sufficiently tightly administered and were not so prone to fraud, but leaving that to one side, I think that we could all agree that measures to tackle fraud have desirable objectives. However, I and others are extremely concerned about confidentiality, and we are alive to the dangers of the surveillance state. I am pleased that the Select Committee on Home Affairs has decided to make it its business to consider the surveillance state and the degree to which people who justifiably want their security enhanced and strengthened, using modern surveillance techniques, need to be reassured about their privacy and the protection of their liberties. That is the balance that we need to strike in a state such as ours.
Of course, the presumption in the past has been that when a citizen has provided his or her details to the state for a specific purpose, the details would be held only for that purpose. I accept that that is a difficult area, inasmuch as it is important that the Government be efficient in their use of data. People may on occasion be frustrated or exasperated to find that a piece of information that they gave to one Government agency has not found its way to another, as they assumed that it would, and when that would have made their interaction with the Government much more efficient, effective and smooth, so I appreciate that we are not talking about absolutes. None the less, my concern, and the concern of many other Members, is that as soon as data are shared widely across Government, and by Departments for which the data were not intended, there is a serious risk that they will be used inappropriately, whether for phishing expeditions, as was said earlier, or for any other reason.
I am concerned that the Audit Commission has been given a role in respect of data. I always thought that the Audit Commission, set up by Mrs. Thatcher, was designed to try to ensure that we received higher quality public services that were better value for money. We could have a separate debate about whether it achieved, or continues to achieve, that; after all, millions of pounds of taxpayers’ money are spent on it. However, I had never realised that the Audit Commission was intended to snoop on individual citizens to make sure that our data were being matched in a way that was desirable for the Government.
It is interesting that as far as I am aware—the Minister may correct me—no estimates have been given of the potential financial savings resulting from the proposal. It is legitimate to examine this aspect. If we are to extend the power and scope of the state in such a way that the privacy of individuals may be compromised, it would be useful to know what the up side is in terms of revenue savings. If we do not know that, it is hard to make a value judgment. There are many, myself included, who will feel that the amount of money is immaterial because there are issues of principle at stake to do with the liberties of the individual citizen, but others may regard that as a reasonable quid pro quo, assuming that the amount of revenue saved is considerable. At present we are not in a position to make that judgment.
I am also concerned by the ability of the public sector and the private sector to share data. That was confirmed by the Minister, Baroness Scotland, in the other place when she said:
“The provisions of this Bill will enable the public sector to share information with the private sector, and vice versa.”—[Official Report, House of Lords, 7 February 2007; Vol. 689, c. 731.]
That is quite clear.
Last week at the Home Affairs Committee, the witnesses included a representative of Tesco and a representative of the company that makes Nectar loyalty cards for Sainsbury’s and others. They were cross-examined by the Committee in detail. People who were present would have been surprised, and some may even have been shocked, by what they heard. Of course, when one stops and thinks about it, it seems obvious. If people visit one of those stores and choose to have one of their cards—I accept that that is a choice; it is not compulsory, but millions of people make that decision—the time and location of their purchase is logged. In other words, each time they use the card, the firm knows where in the country they are. The contents of their purchase are also logged, including items that may be confidential or embarrassing—medication, for example.
People might not wish to have such information widely shared. It was confirmed by the witnesses at the Committee sitting that that information can already, in some circumstances, be shared with the police. So there is an individual, thinking that all they are doing is collecting credit points in order to buy another few bottles of wine or another few chocolate bars, but if the circumstances are such that it is deemed necessary, the state can use that information to track the whereabouts of that citizen. There may be occasions when that is useful and perhaps even desirable, but it is worth while scrutinising in some detail, because many people will have anxieties about that.
It is interesting that we in the United Kingdom seem to have no compunction about giving a great deal of information to the private sector, but we have some reservations about giving it to the state. As soon as the distinction is blurred, people may regard the issue differently.
The amendment in the other place that attracted most attention was that of Lord Lloyd of Berwick, which was passed by 182 votes to 121, on the use of intercept evidence. I read in one of the Sunday newspapers that the idea of Members of this place considering the use of intercept evidence was a brilliant and original scheme devised by the right hon. Member for Witney (Mr. Cameron), which came as news to me because I had heard Liberal Democrat Members putting forward exactly such a proposal many years before it appeared to come to the attention of the leader of the Conservative party. None the less, I welcome the growing consensus in this House on the use of intercept evidence in some court cases where it is deemed to be necessary and appropriate—although that consensus seems only to be making a certain amount of progress on the Government Front Bench.
When I recently asked the Home Secretary whether intercept evidence would be a useful measure to tackle terrorism and, by extension, some serious categories of crime, he said:
“Let me deal first with the question of intercept evidence in court. We have been looking at that for a considerable time, and both Opposition Front-Bench teams know that the disadvantages so far outweigh the advantages that what they are suggesting meets with complete opposition from our security and intelligence services. They are the front line, charged with the national security of this country. Consistently, time after time, they have made it clear to both Opposition Front-Bench teams that they are opposed to that approach. When those who speak for the Opposition parties make that proposal, they should admit that they are disagreeing with those who are primarily charged with the nation’s security.”—[Official Report, 24 May 2007; Vol. 460, c. 1432.]
I did not properly capture the force with which the Home Secretary made those comments. He was full of scorn and derision for the people who had made that suggestion. At the same time, the Leader of the House, a former Home Secretary himself, was sitting next to the Home Secretary gesturing in a way that suggested that he was extremely supportive of the Home Secretary’s view that intercept evidence should not be used in court cases. Then the Prime Minister in waiting, the current Chancellor of the Exchequer, suddenly conveyed a greater interest in seeking to establish a consensus and the goal posts appeared to have moved. If that is the case, we welcome it. It is not necessarily a way of conducting good government, but perhaps once this has been considered at length by right hon. and hon. Members on both sides of the House, the outcome will nevertheless be the desirable one.
Everyone wants serious action to be taken on serious crime. Serious crime has exploded under this Government, but we should not always assume that the legislation that is brought before us has the intended consequences that Ministers claim for it here. Today, I received a written answer from the Under-Secretary, the hon. Member for Gedling (Mr. Coaker), who will be familiar with it, having crafted it in detail and provided it for me. My question was fairly straightforward. On the basis that the Criminal Justice Act 2003 put in place a mandatory five-year sentence for people carrying an illegal firearm, I asked how many of those who have been convicted of carrying an illegal firearm since then have been sent to prison for five years. One would assume that the answer was 100 per cent., because that is what a mandatory sentence would imply. However, as the Minister will know from the answer that he gave me, the actual figure is 37.9 per cent. In fact, people who have been convicted of carrying an illegal firearm are given, on average, sentences of less than four years, despite the mandatory five-year sentence.
I give that example because such items of legislation keep being put before us, and Opposition parties keep being told that if they do not endorse them in their entirety we are somehow failing in our duty to the citizens of this country. Such is the frenzy, the fury and the volume of legislation that when we return to it a few years later to see whether it had the desired effect that Ministers claimed on the Floor of the House, we tend to find that in reality the story is very different. It is therefore only right to consider the measure in that light and realise that tough talk and eye-catching initiatives but lack of follow-through have made many people in this country cynical about the Government and their ability to tackle crime.
We want action on fraud and serious crime and a Government who respect historic British liberties. We will scrutinise the Bill in detail in Committee, but at this stage, most people who are trying to achieve that balance believe that the measure fails the test.
As I listened to the debate, I became increasingly concerned by a thought that has been bearing down on me with ever greater force. Our ancestors would have gone to the stake before they allowed such a measure to pass through the House. In itself and cumulatively with other measures, it represents the most massive extension of the state’s powers that we have experienced for many years.
If the Bill receives a Second—let alone a Third—Reading, the fundamental safeguards of admissibility of evidence and the protections against the state bringing abusive allegations based on flimsy evidence that are inherent in a criminal trial will be set aside, and a man or women could be found liable for the most serious crimes solely on the basis of written evidence, submitted even in the defendant’s absence, that he is guilty of a serious crime and is likely still to be committing serious crimes. The burden of proof will not be the criminal standard—namely, that a jury should be sure beyond reasonable doubt—but that a judge is satisfied that the defendant is probably guilty: that, on the balance of the evidence, it is likely that the defendant was involved, as the Serious Fraud Office or the Director of Public Prosecutions contends.
Several hundred years have gone by during which the right to a fair trial in this country was hard fought for and dearly achieved, not only by Conservative and Liberal Members, but Members who sat on the Government side, as it now is. The trade unions and those who fought against the Executive and abuse of power by the Executive struggled for the due process through which the state had to pass to produce a conviction.
The Bill raises fundamental questions of principle. How many of the consequences of conviction is it reasonable to impose on an individual without providing the evidence that can make a jury sure of guilt? Let us postulate that an individual is the subject of an application by the Director of Public Prosecutions. The Proceeds of Crime Act 2002 provides that his assets can be seized by civil process, provided that it is deemed or proved, on the balance of probabilities, that they are likely to have been acquired by criminal activity.
I do not say that, in itself, such a provision is not right. However, we must ask ourselves whether we have cumulatively reached the point at which so many of the consequences of a conviction are imposed on an individual without trial that we are essentially bypassing the due process that has been achieved through hundreds of years of sacrifice, effort and often blood by our ancestors.
The consequences of the Bill for the individual involve the seizure of his property and the stigma of guilt, because on this sort of evidence he would have to be found liable—and finding someone liable means that he would have to be found liable for having committed serious crimes. On the back of that finding by the judge, presumably on written evidence alone, the individual might be able to make representations, but he would not be able to call a fully fledged trial or give his own evidence in oral testimony, as no provision appears to exist for that.
The individual would be liable to have his liberty restricted in ways unprecedented in common law. The provisions—these are only non-exhaustive examples—allow the court to make an order placing prohibitions and restrictions and all sorts of requirements on his holding of property; his business dealings; his enjoyment of his property; his working arrangements and even the way he communicates with his associates; on the premises to which he has access; on where he lives and on his travel. Short of imprisoning him, what more on earth could be done to restrict liberty without the evidence on which convictions would ordinarily follow, but merely on the balance of probabilities?
With the greatest of respect to the Minister, this Bill imposes on an individual almost all the consequences of a conviction, short of imprisonment. It allows the judge to say where the individual should live, whom he should meet, with whom he should communicate, where he should work and what he should do. Where is the difference in fundamentals—save for the iron bars placed across the window—between that and imprisonment? What procedure will be adopted for that? Affidavits will be submitted in secret to a judge, often on information that would never be seen in a criminal court, and based on flimsy second or even third-hand hearsay.
It is not surprising that we should become aware of the voices whom the Government so often treat with disdain and contempt—the “shenanigans” of defence lawyers was how they were referred to by the Minister for Security, Counter Terrorism and Police, but I refer to them as voices of liberty and justice—and to the voices of the Law Society and the Bar Council. All those voices are raised in protest, concern and anxiety about a Bill that would remove fundamental principles from our public life. Of course they are concerned—if we place a weapon of that nature in the hands of the Executive, its power will inevitably be used in circumstances not contemplated by us. We will have no control over it. We will have no say in how it is implemented. It will be handed to the Director of Public Prosecutions, the director of Revenue and Customs and the director of the Serious Fraud Office and they will decide who is targeted as the subject of these applications.
My hon. Friend the Member for Arundel and South Downs (Nick Herbert) referred from the Front Bench to the Government’s intention to ensure that the legislation hits only those describable as “Mr. Big”, but that is not so. Let us look at the 2006 consultation paper, which makes it as clear as a bell that the Government view this as an alternative to prosecution. I ask the Minister either now or in his summing up to clarify the circumstances in which such a power will be used.
Let us analyse some of the circumstances envisaged in the consultation paper:
“circumstances in which civil orders could play a role where prosecution is not feasible, alongside prosecution or as an alternative to prosecution.”
It provided examples, referring to
“significant numbers of individuals at the fringes who cannot be pursued in the main trial, and for whom a separate trial is not thought worthwhile.”
What we are contemplating is the use of those draconian powers to restrict people’s liberty without any admissible evidence, simply because of the expense and inconvenience of bringing them to trial. That is what the consultation paper says. It refers to “case management reasons” for objecting to “over-large trials”, saying that it might be preferable to deal with those who are marginally involved by bringing one of these orders rather than prosecuting to trial.
I ask right hon. and hon. Members to reflect for a moment on the significance of that proposition. No longer does evidence have to be brought. No longer do the hard graft of investigation, the assembling of a case and its bringing to court have to be gone through. All that is necessary is to pop along to a High Court judge on the strength of a number of affidavits and get an order against someone. The consequence is that the inconvenience and tedium of bringing through to a trial and persuading 12 ordinary people in a jury box that a man is guilty can simply be circumvented by that device. A man can be virtually imprisoned, his assets stripped, his name and reputation taken away, yet there is no need to bring him to trial.
We are not talking about Mr. Bigs. These are people described in the words of the Government’s own consultation paper as “essentially peripheral players” who might
“step up to leadership in the organised crime group”.
On that basis, although they are peripheral an order will be made against them. In my respectful and urgent submission, the House needs to reflect very carefully about whether, if they truly are peripheral players, so heavy and blunt an instrument should be placed in the hands of the Executive on so slender a basis.
What did the consultation paper say about the Mr. Bigs? It was suggested that they might be subjected to these orders where there is sufficient evidence to justify an order to a civil standard, but insufficient for a conviction. That goes directly against what the Minister for Security, Counter Terrorism and Police told us in opening the debate today—that in essence the burden or standard of proof would be the criminal standard of beyond reasonable doubt. If that is right, what is the need for the provision? If it has to be established beyond reasonable doubt, that is essentially recreating a criminal trial in a civil court. Of course, the consultation paper did not say that and nobody really believes—not even, I suspect, the Minister—that the criminal standard of proof can conceivably apply in those circumstances. It will be a civil standard of proof and merely a question of probabilities, not of reasonable certainties. What does the consultation paper say about that? It explains why a Mr. Big, instead of being prosecuted, properly convicted and sentenced by a judge, should simply be subject to this summary-type of procedure based on written evidence and no trial. It says that it can be justified because of the quantity of the evidence or because some of it is in a form not admissible in criminal proceedings, but that can be used in civil cases—namely, hearsay.
It was argued earlier that, since the Criminal Justice Act 2003, the admissibility of hearsay in a criminal trial has now become so relaxed that there is in fact not a very significant difference between genuinely probative hearsay and its admissibility in a criminal trial, and genuinely probative hearsay and its admissibility in a civil trial. Be that as it may, what the consultation paper is essentially saying is, “We don’t have the evidence against this person. We can’t prove that they are involved in serious crime. We haven’t got the necessary foundation to deprive this man of his liberty, to strip him of his assets, to take away his good name and to impose restrictions on him that would have a substantial effect on his family.” The orders in the Bill would have just such effects.
Let us make no bones about this: the House is being asked to accept that a truncated, abbreviated kangaroo procedure should be adopted to visit upon an individual the consequences of a conviction because the state does not have sufficient evidence to convict him. I ask Members on both sides of the House to reflect on whether we ought to admit that as a principle in this House. It is in this House that so much sweat, toil and effort has been put into the cause of freedom and liberty. Should we, on a quiet Tuesday afternoon, allow so fundamental a principle to pass without at least a voice of protest being raised or critical and constructive opposition being mounted? Our ancestors would have gone to the stake before permitting the Executive to restrict an individual’s liberty in this draconian way.
Let us look at some of the other bases on which an order could be made. In another place, Baroness Scotland outlined the circumstances in which a manufacturer or business man was making items that could facilitate crime. She gave as an example the production of cargo storage containers with false bottoms, saying that such equipment would plainly be manufactured with little else in mind but a criminal purpose. The orders might therefore be used to prevent such items being manufactured. We might also think of those who manufacture speed camera detection equipment. Those are machines that people have in their cars to tell them when they are approaching a speed camera. I do not have one; I do not know whether the Minister does.
The Minister is shaking his head, so we can all rejoice at that.
It is lawful to produce that type of equipment—it is not a criminal offence—yet the manufacturer could be the subject of one of these orders. I ask the House to reflect on that. Producing such items is a perfectly lawful, admissible activity, but the House is being asked to make it unlawful through legislation, rather than a proper criminal offence being brought on the basis of aiding and abetting—or, under this Bill, assisting and encouraging. Such people would be eminently chargeable under the new provisions with assisting and encouraging an offence, and one of those orders would be made. That would criminalise lawful conduct without reference to the House. It would visit upon the individual the consequences of a conviction and of engaging in unlawful activity without having made the activity unlawful.
The Minister’s opening speech was conspicuous for its paucity of justification for the orders, other than bland platitudes about the gravity of organised crime, with which I completely agree. Every time we look at the specific justifications for the use of these orders as set out in the consultation paper, they melt under scrutiny. The consultation paper also invites us to accept, as a basis for passing the Bill, that orders could be an
“additional option in the run up to a criminal prosecution”.
Let us analyse that one, if we may. Let us imagine that the Serious Fraud Office, the Director of Public Prosecutions or the Serious Organised Crime Agency had a potential criminal under investigation. It would investigate him in the normal ways open to it, no doubt including surveillance, covert interception and all the other paraphernalia available to the law enforcement authorities. Under the proposals, the Director of Public Prosecutions, for example, could pop along to a High Court judge and say, “Now look, we’re investigating this chap.” The judge would say, “Well, haven’t you got to serve a notice on the person you’re investigating?” The director would have to say, “Yes, the Act requires it.” He would be faced with the bizarre situation of having to tell the serious criminal that he was investigating him, because he would have to seek an order in the High Court and serve notice on the criminal to prevent him from engaging in any further activity.
I ask the House to reflect on whether those two things are compatible. If we are seeking a civil order restricting a person’s liberty and stripping him of his rights as a free individual, we are inherently telling him that we are investigating him and that he is a target of a law enforcement agency. There would then be no point in getting one of these civil orders, unless the evidence was already in the bag—in which case, why not just prosecute him?
I hope that the Minister will clarify that point. I find it hard to understand how such an order could be a useful
“additional option in the run up to a criminal prosecution, imposed to restrict the harm the subject can do while the case is being prepared”.
It is a long time since I was in a magistrates court, but I recollect that magistrates have pretty wide powers on bail. If there were a real fear of the subject reoffending, the magistrate would be under a duty to put him in the nick. It is one of the bases of the Bail Act 1976 that if there is a real perceived risk of someone reoffending, or of continuing to offend, he should be imprisoned. He should not be on the outside with an expensive civil order being sought from a High Court judge. I do not understand that, and I ask the Minister to clear up my confusion. If an order is to be imposed to
“restrict the harm the subject can do while the case is being prepared, in cases where the subject is aware of law enforcement interest already”,
what is wrong with bail, with the conditions attachable to bail or with the fundamental power of the court to withdraw bail if there is a risk of reoffending?
I find it almost impossible to understand where this power will fit in. If it is not obvious straight away that it is vital to the fight against crime, I ask the House to reflect on whether we should be giving it to the Executive at all. If it is so hard to discern the basis on which the orders will be made, and exactly where the provisions will fit into the criminal justice system, why are we taking a step that is fraught with such grave consequences to the principles of liberty for which the House has always stood? Is it surprising that people in the judiciary and the wider society are saying that they can no longer trust the House of Commons to stand up for their liberties, and that that must be done by the judiciary? That argument is always used to justify the power of judges to take away from the House its role as the vigilant defender of human rights and liberties. I respectfully submit that we must exercise the greatest of care over such an important issue of trust.
It is not only the Bill itself that gives me concern, but the place that it occupies in a growing trend that the Government have evinced for a number of years. Others have spoken about the avalanche of legislation that has overwhelmed our criminal justice system. That is a true observation. Speaking for myself, I have never seen such a tide of legislation exposed to such withering criticism in the courts, and some of it has not even been brought into force, as my hon. Friend the Member for Arundel and South Downs (Nick Herbert) mentioned. We had 340 sections and 37 schedules to the Criminal Justice Act 2003, and 179 sections and 17 schedules to the Serious Organised Crime and Police Act 2005. Now, we have the Serious Crime Bill, with 85 clauses and 15 schedules. Some countries’ whole criminal codes have fewer provisions than that.
I hesitate to interrupt my hon. and learned Friend because he is making a powerful speech, but the 2003 Act underscores his very point. Four of its sections and two of its schedules have been repealed in whole or in part, and approximately 50 sections and 17 schedules are not yet in force. That was the flagship Act that this benighted Government forced on us and it is exposed by his argument as being wholly deficient.
My hon. and learned Friend is right. I was about to cite one example. Barely two years after the money laundering offences were enacted in the 2003 Act, they were rewritten in the 2005 Act. What on earth happened between the time when the 2003 provisions became effective and the 2005 Act was drafted to make it necessary to rewrite all the money laundering provisions in that earlier Act? As my hon. and learned Friend said, perhaps the truth is that legislation is not receiving the quality of attention that should. If these fundamental principles are not simply being tinkered with in a lightweight spirit, that does no credit to this Government or the systems of government in which we are engaged.
The Bill must be seen against the background of a Government who wish to introduce identity cards and ensure that the citizen must do the bidding of the state at appropriate times in his life so that his biological data can be recorded. Under those proposals, a citizen would be obliged to go to a particular place under the direction of the state to give up his personal details. Under the Bill’s provisions, the consequences of almost all convictions, and certainly all of them that matter, will be visited on that individual without due process and without trial.
In my respectful submission, there is no reason for us not to criticise, not constructively to inquire and not to probe the Minister for a better justification than he has given to date. I am certain that he and his colleagues are motivated by a desire to combat serious crime. We should make no bones about that and, frankly, I concede it. However, I ask the Minister to reflect on the idea that what is at stake is not trivial or light; it is a tradition and principle of liberty for which his political ancestors as well as mine have fought for hundreds of years and which was always considered to be, and I believe still is, one of the most valuable inheritances to which all of us, on both sides of the House, have the privilege of acceding. That is why I ask him to reflect very carefully, before the Bill is allowed to pass through the House, on the real justification for it, on the logical bases put forward in the consultation paper, and on whether or not it does not amount to a very significant invasion of our liberty and one that the House should not pass.
I congratulate my hon. and learned Friend the Member for Torridge and West Devon (Mr. Cox) on the most devastating and destructive piece of argumentation in response to part 1. All that he said is something that the Government should have thought about beforehand. The quietly sceptical way in which my hon. Friend the Member for Arundel and South Downs (Nick Herbert) referred to part 1 was very much of a piece—if different in character—with the way in which my hon. and learned Friend advanced his case.
Having listened to the nearly hour-long speech from the Minister for Security, Counter Terrorism and Police, who introduced the Bill, I do not think that even two sentences of what my hon. and learned Friend said had ever occurred to the Minister before he got to his feet. That is not surprising. I am not sure whether he is about to be reshuffled, but the hon. Member for Taunton (Mr. Browne) said that he was heading for ministerial oblivion. I do not know what the Minister’s future is over the next few days, but there were moments during the course of his speech when I thought that he was going to talk his way right through the reshuffle to prevent his being available to be spoken to on the telephone.
I can be briefer than I intended because of the speeches by my hon. and learned Friend and my hon. Friend. I want to place the Bill, and part 1 in particular, in the context of the avalanche or tidal wave—call it what you will, Mr. Deputy Speaker—of criminal justice legislation since 1997. My hon. Friend identified the catalogue of criminal legislation that we have had and the huge number of additional offences that the Government have created in the past 10 years. However, it does no harm—in fact, I think it does some good—to remind the House of something, because it is often forgotten. I can remind only part of the House, of course, because despite introducing the Serious Crime Bill, the Government have failed to persuade a single Labour Back Bencher to come and support the measure. I appreciate that not everyone who is elected as a Member of Parliament can be here all the time. I appreciate that not every Member of Parliament is in the least bit interested in legislation. I would have thought, however, that at least one Labour Back Bencher would have had the nous to read the Bill, to have some thoughts about it and to speak gleefully on behalf of the Government in its favour, or even just to read out a Whips’ brief—
Possibly that, too. Perhaps Labour Back Benchers have legislation fatigue. I mentioned in an intervention that 34 Home Office Bills had been repealed, repealed in part or not fully implemented. That is bad enough, but let us consider the sort of Bills they are. I am not going to recite all of the 34 out of the 64 Bills for which the Home Office has been responsible since 1997, but I will give just a few examples. The Crime and Disorder Act 1998 contains 43 sections and two schedules that have been repealed in whole or in part. The Criminal Justice and Court Services Act 2000 contains 15 sections and one schedule that have been repealed in whole or in part. Half a dozen of its sections and schedules are not yet in force, and it was passed seven years ago. The Criminal Justice and Police Act 2001 has 21 sections and two schedules that have been repealed in whole or in part, and an equivalent number of sections from the Police Reform Act 2002 have not been brought into effect or have been repealed in whole or in part. The Criminal Justice Act 2003, about which my hon. and learned Friend and I had a brief discussion, contains four sections and two schedules that have been repealed in whole or in part, and approximately 50 sections and 17 schedules that are not in force.
What is the point of the Government’s coming to the House to tell us that legislation is essential to the public good, ramming it through and not allowing Public Bill Committees to discuss it? Bills are guillotined, the work has to be done in the other place, and in the end the legislation does not come into force.
I shall speak briefly about part 1, although the brevity of my remarks should not be interpreted as a sign of any lack of enthusiasm for my arguments. What we are discussing is a form of civil injunction to prevent a crime. It seems that things have changed, but I was always taught that it was not possible to obtain an injunction from a High Court judge to prevent an anticipated crime, because the criminal law was sufficient injunction in itself. That was the deterrent: that was the way in which our behaviour was regulated in relation to criminal activity. It would not be possible to go to court and say to the judge, “I want an injunction to prevent the defendant, or respondent, from committing an anticipated burglary, an anticipated murder, or some other anticipated crime.” The judge would simply say “The law is on the statute book. Common law already exists. That will do.”
Equally, I was always led to believe that the criminal law was not part of contractual law. A person could not commit a crime on the understanding that he could do it as long as he paid the fine or did the time; the criminal law did not work in that way. Now, however, we are watching the Government quietly—I say quietly because no Labour Back Benchers are here to listen to this, or to listen to the Government’s justification of their intention—move huge chunks of criminal law and procedure into the civil jurisdiction.
As my hon. and learned Friend pointed out, the consequences of such action will not be slight. I fully understand the political reasons for it: it must be cheaper, I presume it must be quicker, and it must be assumed that it will have some deterrent effect. Nevertheless, as my hon. and learned Friend said, it will have deleterious and damaging consequences for our constitution and the balance between the state and the individual, and I find that somewhat worrying.
My hon. Friend the Member for Arundel and South Downs was entirely right to give the Bill only a conditional welcome. The fact that we will not divide the House this evening does not mean that aspects of the Bill—this aspect in particular, I hope—will not receive the closest examination in Committee. I note that my hon. Friend the Member for Arundel and South Downs and my hon. Friend the Member for Hornchurch (James Brokenshire) are nodding in assent.
We must be extremely careful. As I have said, we are providing for a form of injunction against crime when the criminal law already exists. I do not suggest that that is a wholly novel concept—people are bound over in the courts not to commit offences, and we have observed the somewhat troubled system of control orders, so the wall has been breached to some extent—but this is a mighty step, and a huge leap over that wall.
The hon. and learned Gentleman rightly referred to the civil concept in the criminal courts. People in court undertook to keep the peace as long ago as the 13th century, but that was by consent. This provision is quite different: it is being thrust on people.
for the purposes of my argument, I think I must accept that the principle against which I am arguing has been breached to some extent. The hon. Gentleman is right, however: the quality of the breach is entirely different in the case of bindovers.
I am deeply concerned by clause 1(3), which permits the court or the applicant a very wide ambit. It states:
“An order under this section may contain—
(a) such prohibitions, restrictions or requirements; and
(b) such other terms;
as the court considers appropriate for the purpose of protecting the public by preventing, restricting or disrupting involvement by the person concerned in serious crime in England and Wales or (as the case may be) Northern Ireland.”
Clause 2(1) states:
“For the purposes of this Part, a person has been involved in serious crime in England and Wales if he—
(a) has committed a serious offence in England and Wales;
(b) has facilitated the commission by another person of a serious offence in England and Wales; or
(c) has conducted himself in a way that was likely to facilitate the commission by himself or another person of a serious offence in England and Wales (whether or not such an offence was committed).
The court need not have within its grasp evidence that a serious criminal offence has been committed; it need merely be persuaded that it is likely to be committed. A facilitator, however, is quite likely to be caught by the clause, even if he did not know about the offence and even if he did not intend to facilitate its commission.
Clause 5(2) states:
“In deciding for the purposes of this Part whether a person…facilitates the commission by another person of a serious offence, the court must ignore…his intentions, or any other aspect of his mental state, at the time.”
I accept that there are absolute offences, but it seems to me that a serious criminal offence, or the facilitation of a serious criminal offence, ought at least to be in the mind of the respondent to the application. Otherwise he could well be penalised—subjected to a five-year term of imprisonment—despite his innocence. Five years is a long time for breaching an injunction. Even the Contempt of Court Act 1981 provides for a limit of two years for that form of breach, and I think that my hon. Friends will need to examine that provision very carefully in Committee.
We had a degree of fun over the definition of “serious crime”. I think that most people could understand the concept without its having to be defined in a schedule, but at least there is a definition in the Bill for the benefit of those who are likely to be caught, those who may wish to make applications, and Members of Parliament who may come upon Hansard by accident and read the speeches of those who spoke before me.
Part 1 of schedule 1 defines serious offences as drug trafficking, people trafficking, arms trafficking, prostitution and child sex, money laundering, fraud, corruption and bribery, counterfeiting, blackmail, and offences relating to intellectual property—the hon. Member for Taunton had some fun with those—and the environment. It seems to me at least possible that the Minister for Security, Counter Terrorism and Police, who introduced the Bill, has not read the underlying legislation to which the schedule refers. The clue is that the Minister tends to resort to abuse rather than argument when faced with a difficult question. I am not suggesting that we are discussing the possibility of people being caught by prevention orders for fishing with a spinner during the fly season, but I do think the Minister ought to come here with his work done before trying to explain what the Bill is about. I doubt very much that he has any idea what it is about.
The Minister chided me, telling me that I ought to get out more. I would get out more if I were not having to keep the Government under a watchful eye, but there are some interesting gaps in the schedule. For instance, homicide, grievous bodily harm, offences of robbery and indeed terrorist offences are not included in part 1 of the schedule. Perhaps the Government let them slip. I worry that the Ministers in charge of this Bill have not been giving it their proper attention.
One other issue about which the House ought to be concerned is clause 5(4), which yet again provides an example of this Government requiring this Parliament to give this Government executive powers to amend the criminal law without resort to Parliament. Clause 5(4) says, in the most disarming way:
“The Secretary of State may by order amend Schedule 1.”
I really do not think it appropriate to allow any Home Secretary—certainly not the catalogue of Home Secretaries we have had to put up with since 1997—to get anywhere near amending any Act of Parliament by expanding, or even reducing, the list of criminal offences that are affected by the Bill without proper parliamentary scrutiny on the Floor of the House; not tucked away in some Committee Room upstairs but down here where all of us can scrutinise it. If one wants to change the principles or detail of primary criminal law, one should do it by primary legislation.
What will these orders be able to cover? My hon. and learned Friend the Member for Torridge and West Devon has been through those. These are fundamental restrictions on liberty, on where you can work, to whom you can talk, where you can go, who you can meet, what you can do with your money and matters of that nature. They apply to individuals, to partnerships, to unincorporated associations and to corporations. Most extraordinarily, we have these examples, which as my hon. and learned Friend pointed out, are merely examples of requirements that may be imposed:
“a requirement on a person to answer questions, or provide information, specified or described in an order…at a time, within a period or at a frequency…at a place…in a form and manner; and…to a law enforcement officer or description of law enforcement officer…notified to the person by a law enforcement officer specified or described in the order.”
It would be amusing, were it not so serious; even when serving the order, the authorities are entitled to break into your house to see if you are there to receive it. It strikes me as deeply worrying and concerning that the Government thought it appropriate to pass such legislation without more ado.
I will not delay the passage of the Bill this evening; I simply cannot. But I urge all of us—I know that my hon. Friends on the Front Bench are aware of this—to study the implications of the Bill, to think hard about the consequences of its passage, to test some of these ideas, to destruction if necessary, in Committee and to permit only what is necessary and only what can be justified to the public to become part of our criminal law.
The Minister said that it is a civil procedure or a civil matter; I have also heard the Under-Secretary of State for the Home Department, the hon. Member for Gedling (Mr. Coaker), say that from a sedentary position. It is not a civil matter, except by description from the Government. In terms of the European convention on human rights, which the Government have domesticated into our jurisdiction and jurisprudence, we are talking about the imposition of savage penalties—five-year prison sentences—for breaching a civil order. That is a penalty in anyone’s book. If the Minister thinks that simply by mouthing the word “civil” in front of every piece of criminal procedure or criminal law that he brings into this House, he makes it actually a civil penalty, he is in a greater state of unknowing than I had previously thought that he and his colleagues might be.
I do not want to use the same sort of language as the Minister used in his speech but, with equal vehemence, I urge the House to be careful.
Having heard two very powerful speeches, I can be rather briefer than I intended.
The hon. and learned Member for Harborough (Mr. Garnier) made some telling points and said that he would truncate his remarks after his hon. and learned Friend the Member for Torridge and West Devon (Mr. Cox) made a powerful speech, which showed a lot of understanding of the procedures that should inform these debates but frequently does not.
It was unfortunate that in opening the Minister referred to the “shenanigans” of lawyers. I confess to defending and prosecuting asset recovery cases, and I do not recognise the word “shenanigans.” It is always unfortunate when Ministers see fit to insult lawyers, and the Minister of State, although he was goaded from this side, concurred with that description. Let us remember that many thousands of people each year are acquitted of offences with which they have been charged; they are innocent people. Without the “shenanigans” of lawyers, heaven knows where they would end up. [Interruption.] “Even the odd Minister,” according to the hon. Member for Hornchurch (James Brokenshire). I am sure that that was not meant in any way to be personal about the Under-Secretary.
I was concerned that the Minister stressed that we are not talking about the civil standard of proof—that is to say, on the balance of probability—but about something nearer the criminal standard. He was relying on the case of McCann, in which the House of Lords suggested that, in many cases, there would be a civil standard but that, in some, it might move up to somewhere near the criminal standard. That does not satisfy me at all; even if the learned judges had said that in every case that would be so—I know that they were talking about a previous Bill, but the issue is the same—I would not be at all persuaded. Who decides to apply something nearer the criminal standard? When does that kick in? When is it appropriate to rely only on the civil standard? These are fundamental matters, especially when one deals with the draconian measures that may be introduced in lieu of these orders.
The Minister says that the civil standard of proof certainly will not apply. Clause 34 says:
“Proceedings before the High Court in relation to serious crime prevention orders are civil proceedings…One consequence of this is that the standard of proof to be applied by the court in such proceedings is the civil standard of proof.”
Clause 35, “Proceedings in the Crown Court”, says the same:
“Proceedings before the Crown Court arising by virtue of section 20, 21 or 22 are civil proceedings…One consequence of this is that standard of proof to be applied by the court in such proceedings is the civil standard of proof.”
The Minister, in what can only be said to have been rather intemperate language, said this, that and the next thing about organisations such as Liberty, which has said that the Government have got it wrong. When one reads the Bill, one cannot conclude otherwise. The only thing on which the Minister could fall back was to blurt out the McCann case; McCann says that the standard of proof could be the civil standard or almost, maybe, at times, something approaching the criminal standard. That is no good at all. Liberty is right in what it says, and I do not accept what the Minister says at all.
Everybody in this House is keen to make sure that we stem the rise of organised crime. Nobody would argue against that being a priority, but we must not throw away our civil protection—the protection that has been woven into the judicial process over many centuries—in an urgent rush to do something about organised crime.
This Government introduced antisocial behaviour orders, and they want to limit the right to jury trial and spend less on legal aid. We find the same steps being taken in every area we consider. I served on the Committee that considered the civil contingencies legislation. It is difficult to believe, but it is true, that a Government Whip can decide to declare an emergency. A Government Whip can also decide not to enter someone’s house to look for evidence, but to knock their house down, and the householder does not have a right to sue for damages. That is in the Bill. That might be thought of as small potatoes when compared with some other measures, but it does not make me feel any better.
There is a consistent drift—a constant attack on civil liberties and on the judicial process. The fact that the Minister prays in aid the thoughts of the judiciary in the McCann case shows that the Government are on the ropes. There is a certain frisson in the relationship between the Government and the judiciary at present, so it appears that the Minister was clutching at straws in trying to justify the Bill.
I am unhappy with the Bill. There are many examples of what might happen to people. It is unacceptable to condemn a person to house arrest without their having the opportunity to be tried properly on the accusation giving rise to the order. There are also restrictions on travel, on the use of a private dwelling, and on meeting and making arrangements with associates. All such restrictions are perfectly proper if a proper degree of proof has been established through the courts, but without that they are utterly unacceptable as they then amount almost to house arrest.
A breach of the conditions can give rise to a five-year prison sentence. Equally insidiously, the order can be renewed indefinitely. We should think about that. Does anyone fancy being under house arrest indefinitely? I would not like that. It is all very well saying that an appeal will lie somewhere or other, but I do not know where it will lie because presumably in the initial event a High Court judge will have imposed the order—and an appeal might well be difficult to mount in any case. These are serious matters. The Bill is rightly called the Serious Crime Bill—it jolly well is a serious crime Bill from my point of view.
Why does Parliament have a Joint Committee on Human Rights? On 25 April, the Committee reported serious misgivings about the serious crime prevention orders in part 1 of the Bill. It considered that the SCPO provisions raised three significant human rights issues: first,
“whether SCPOs amount to the determination of a criminal charge for the purposes of the right to a fair trial in Article 6(1) of the”
European convention on human rights; secondly,
“whether the standard of proof in proceedings for an SCPO should be the civil or the criminal standard”;
“whether the power to make SCPOs is defined with sufficient precision to satisfy the requirement that interferences with Convention rights should be ‘in accordance with the law’ or ‘prescribed by law’”.
The Committee also says in its report:
“The Government argues that SCPOs do not involve the determination of a criminal charge and therefore do not attract the full panoply of fair trial protections contained in Article 6”.
The Committee strongly disagrees. It goes on to mention that the Bill expressly provides that proceedings for those orders are civil proceedings and the standard of proof to be applied is the civil standard. It adds that it follows from the Committee’s view
“that SCPOs amount to the determination of a criminal charge”,
“that the standard of proof should be the criminal standard not the civil standard.”
Reference has been made to McCann, and I shall do not do so again. Suffice it to say that grave concerns are felt by a range of organisations, including the Bar Council, the Law Society, Liberty and Justice. I would not argue with the Government if what they were asking the House to sanction was intended to be imposed after a thorough examination of the evidence, where on a proven basis a person was convicted or found to require this kind of order. I would still be unhappy about the indefinite imposition of those conditions, but I could not reasonably argue about the imposition of an order. However, the measure in its current form is an attack on our criminal justice system. It is an attack on the presumption of innocence, the equality of arms and, crucially, the right to a fair trail before an independent court. Almost every aspect of the system is being attacked.
I hope that the Government will think again about the orders in Committee. We in this place far too often use the word “draconian”. [Interruption.] The Minister says, “hear, hear.” However, in this instance it is fitting and proper for that word to be used. The far-reaching matters I have referred to should be looked at properly, and these orders should not be established in their current form.
Liberty has sent a full document setting out numerous reasons why it feels strongly about this latest incursion into our basic human rights. All the points it makes are salient, but I shall briefly refer to a couple that have not hitherto been addressed. Liberty is concerned about SCPOs because they are civil orders and they continue the trend of undermining the criminal justice system—the hon. and learned Member for Harborough mentioned that. It is also concerned about the introduction of the SCPO because it avoids
“the rigour of a criminal trial by using the civil standard of proof”.
Another concern is that:
“Because breach of the order is a criminal offence, this blurs the boundary between civil and criminal law”.
As a breach is a criminal offence, it
“can act as a short cut into the Criminal Justice System”.
That is one of the reasons we are discussing this matter. The hon. and learned Member for Torridge and West Devon eloquently addressed it. There is a cumbersomeness about the criminal justice system in respect of acquiring evidence, putting it before the court, and in proving the case—but so there should be. We are talking about people’s reputations and liberty. If we are not careful—cumbersome—about such things, where are we headed? These orders might well be a short cut to get the ultimate result without the necessary standard of proof and the necessary court process. This runs a cart and horses through the Human Rights Act 1998.
Justice feels strongly, too. It says that the SCPOs
“should not be used as a substitute for criminal proceedings”;
“cannot provide sufficient protection for the public in very serious cases”;
“can be imposed in too wide a range of circumstances, compromising legal certainty”;
and that the
“controls that can be imposed on the recipient could be so severe as to amount to a criminal penalty; in these circumstances, the civil standard of proof is inappropriate”.
Those worrying remarks were echoed in previous speeches. These people are used to the criminal justice process, and before anyone says that they are lawyers who are special pleading for themselves, I should point out that there is nothing in this for lawyers. This is not special pleading. Rather, we are pleading on behalf of our constituents and, ultimately, for their constitutional rights—the all-important and ancient rights of our citizens, which are being chipped away at in one Bill after another.
I remember asking the Prime Minister last year how many new crimes had been put on to the statute book. I suggested that while he was thinking about it he might like to leave an aide-mémoire in the Library each week, so that we could be reminded of how many we have created. As the hon. and learned Member for Harborough never goes out, because he is always making sure that he holds this Government to account, even he does not know the exact number, and neither do I. I doubt whether anybody does. [Interruption.] Indeed—nor do the Government. So it might help us all if we had a decent, honest aide-mémoire each week in the Library.
On a serious point, the orders in part 1 are insidious and will be dangerous in the wrong hands. I am not overstating the case. I hope that in Committee, the Government will see the good sense in many of the arguments that have been put this evening and previously by concerned organisations. We cannot all be wrong.
Much of what I was going to say has been said, so Members will be relieved to know that I will be blissfully brief. It is wise to treat any new Government law and order legislation with a degree of scepticism. We have heard already of the 3,000 or so offences that have come on to the statute book in the last 10 years, and of legislation such as the Criminal Justice Act 2003, of which large parts—constituting nearly a third, I believe—have never been brought into force or repealed. It is time to say to the Government that the effectiveness of an anti-crime strategy should be measured not by how much legislation they pass and put on to the statute book, but by how effective that strategy is in convicting criminals, and by the perception and reality of crime in our communities and constituencies.
This is a very significant Bill that to an extent redefines the balance between giving new powers to the state—to the Executive, as my hon. and learned Friend the Member for Harborough (Mr. Garnier) said—and the erosion of civil liberties. Let us be clear: the introduction of a civil order is a significant shift in power from the individual to the state. The chief concern of many is the eroding of civil liberties. It goes without saying that, like everyone in this House, I want to see serious criminals arrested, charged and convicted, but my worry is that if these orders become law, investigations into such criminals will go so far, and then the path of least resistance will be taken. Too often, the path of least resistance will be to apply to the High Court for a serious crime prevention order. The Government assure us that these orders are just another arrow in the quiver of their law enforcement provision. My concern is that instead of being an add-on, they will be used as an alternative to proper judicial process.
I am conscious that I am standing here surrounded by colleagues who are learned in the law, so I will be going down a difficult path in briefly examining the detail of the legalities of what the Government are trying to do. The Bill is still very loose in the parameters it sets. It contains a requirement that
“a person has been involved in a serious crime”,
which suggests to us, in line with a common law definition, that an individual has to have been convicted of a crime before such an order can be sought. However, we know that that is not the case. The Bill in fact says that
“a person has been involved in a serious crime…if he…has committed a serious offence”
“has facilitated the commission by another person of a serious offence”,
or, as my hon. Friend the Member for Bromley and Chislehurst (Robert Neill) said earlier,
“has conducted himself in a way that was likely to facilitate the commission by himself or another person of a serious offence”,
whether or not such an offence has been committed. We do not know the precise meaning of the phrase
“that was likely to facilitate the commission…of a serious offence”.
That is a matter for the courts. It is clear that the legislation allows for circumstances where no crime has been, or is likely to be, committed.
There is a further worry regarding the intent of an individual and the possibility that they had no knowledge that they were operating in a way that facilitated a serious crime. I shall not go through the Bill’s definition of serious crime—my hon. and learned Friend the Member for Harborough has done so—but there are gradations of such offences, and some are more serious than others. I do not intend, either, to go into the salmon fishing, trout poaching scenario that the Minister talked about earlier, not least because I would probably have to declare an interest. However, we cannot be satisfied with the extent of that definition in the Bill.
It seems that the Government view law and order legislation as being roughly on the right track if it enrages the legal establishment. I do not consider the approval of organisations such as the Law Society and the Criminal Bar Association as always necessary, but it is at least desirable to have their seal of approval; after all, these people do know what they are talking about. If the Government had listened at an earlier stage to such organisations and to the Select Committee, there would have been less need for a whole raft of amendments in another place. I will not repeat what the Law Society said about this provision, but is worth getting on the record what the Criminal Bar Association said:
“there can be no public policy that necessitates such a draconian course which rides roughshod over the legal principles upon which our criminal justice is based”.
Those are serious words.
People are right to say that the use of a civil process to impose a criminal liability is criminal justice by the back door. There are already such provisions on the statute book—we are starting to get used to this process—although I am not seeking to repeal them or to trash them this evening. Company directors’ disqualification legislation, football banning orders and the Proceeds of Crime Act 2002 were all civil orders leading to a criminal liability; however, little of such legislation is on the scale of this Bill.
The role of civil process is to provide a mechanism for resolving private wrongs where the public element of the wrong is absent. These orders are introduced as civil injunction orders, which means that the Government are taking us down a much more treacherous path. They are predicated on the notion that at some time in the future, a person will commit an unspecified criminal offence and needs to be prevented from doing so. That is entirely different from someone actually committing an offence, or encouraging, assisting or inciting another to do so.
I want to touch briefly on the amendment in the House of Lords concerning gun crime, which the Minister swept aside as though it did not matter at all. The hon. Member for Taunton (Mr. Browne) and I are members of the Home Affairs Committee, and we have heard recent evidence about appalling situations in challenging communities where gun crime is an all too present danger. This is a really serious issue, yet the Minister swept it aside with a quote from the Association of Chief Police Officers saying that such legislation is unnecessary. Initially, I was amazed to discover that the amendment by Lord Marlesford was necessary; I thought that a provision in law already existed enabling the searching of people for guns. The amendment is about using technology against gangs and groups of young people to search them for firearms, which is a sensible option. If the police were concerned about it, I would take that into consideration, but when Lord Marlesford proposed the amendment he said:
“I particularly noted the enthusiasm of Assistant Commissioner Tariq Ghaffur of the Metropolitan Police, who has particular responsibility for safety on London streets.”—[Official Report, House of Lords, 30 April 2007; Vol. 691, c. 918.]
I hope that the Minister will consider that point. I am prepared to accept that the amendment may require more safeguards, as it is only a short provision.
Despite grave concerns, I wish to give the Minister the opportunity to prove that the orders can operate without undermining our system of justice. It took 20 years to achieve the recent conviction of a Mr. Big, and I note that he was convicted, Al Capone style, of a fairly minor offence compared with some of the offences that people felt he might have been convicted of. We cannot treat this matter lightly, because there are some serious criminals out there whom we want to stop, and we must provide the police with all the means of doing that. But we cannot ride roughshod over the freedoms and liberties that have been fought for so hard and for so long.
Today, some of my constituents visited the Palace and, like many visitors, they commented on the small size of the Chamber. People are always surprised that it is so small. I always remind them that Winston Churchill used to refer to this place as a “little room”. He did not mean that pejoratively, but as a term of endearment. As he pointed out, this little room is the shrine to our liberties. He really understood that the liberties we guard in this place were hard fought for and should be protected. While we support any action that bears down on the most appalling criminals in our society, we do not do so at the expense of those liberties.
Given the powerful and persuasive speeches made by Members—solely on this side of the Chamber, I might observe—my remarks will be brief, but seriously meant. It is often said that the road to hell is paved with good intentions, but so too is the road to authoritarianism. I use that word deliberately, because this Bill is an example of mission creep. Each individual proposal that appears reasonable in relation to criminal justice legislation runs the risk, even in a mature democracy, of going down that road. The Bill is another example of that.
It is also said that men can sit on the fence so long that the iron enters their soul. In the case of the Government, they have sat on those Benches so long that expediency has entered their soul. Expediency can also lead us towards authoritarianism, and I suspect that that is what underlies these proposals.
Before I became a Member of Parliament, I spent the better part of 30 years practising almost exclusively in the criminal courts, defending and, in latter years, mostly prosecuting. Like some of my hon. and learned Friends, I dealt with serious criminal offences and I was conscious, when I presented a case on behalf of the prosecution, that if I were to secure the conviction of an individual I had to ensure that the case I made would be subject to a high burden of proof. I had to jump through certain hoops to prove the prosecution case. Those who investigated the case—the police officers and the Crown Prosecution Service—also had to jump through various hoops to bring the case home. That was right and proper, because of the gravity of imposing a criminal sanction on someone, be they a minor criminal or a Mr. Big. That is a fundamental principle.
In the last few years I was in practice, I was concerned by the repeated complaint from experienced detectives involved in the investigation of serious crime that they were often obliged to curtail the extent of their investigations. As a prosecuting lawyer, I might suggest that they needed to obtain further information to tie up the loose ends, but they sometimes could not do so because of budgetary constraints. That is a real problem for police forces.
Against that background, my great fear is that instead of ensuring that a case is watertight and will end in a conviction, police officers and prosecuting officers will be tempted to look at this Bill and say, “No, we will take the expedient route and use the civil sanction”. It is because it is expedient that we should be very wary of it.
The specific points have already been well made by hon. Members in the course of the debate, but I accept that there are times when the use of the civil standard of proof can be appropriate in criminal proceedings. However, the key test is that those occasions should be exceptions to the rule and very specifically defined. Many of us will have been involved in confiscation proceedings, under the Proceeds of Crime Act 2002 and, before that, the drugs trafficking provisions. The point of those provisions is that they are specifically limited to kicking in only when there has been a criminal conviction to the proper, high standard. That is a very different scenario from the pre-emptive measure envisaged in the Bill. It is the lack of specificity that is a real flaw in part 1.
That view is shared by many outside organisations, especially Justice, which is no mere local lobby group. It is the UK section of the International Commission of Jurists and speaks with some authority. I would be saddened if our criminal justice system, which is often held up as a beacon, were to become tarnished in the eyes of the international legal community.
Of particular concern, as has already been mentioned, are the definitions in clause 3. It expressly removes the requirement that a person must have actually intended to facilitate a serious criminal offence or even to believe that his actions would do so. There is an interesting contrast between the vagueness of the definitions in part 1 and the much more specific definitions in part 2, which follows on from the Law Commission’s proposals and is altogether more useful.
Justice points out that any number of third parties could be caught by clause 3 as unwittingly facilitating the commission of a serious offence. For example, is the taxi driver who drives passengers to a destination where they carry out a serious offence facilitating that offence? If a computer retailer sells equipment to someone who uses it for drug dealing or human trafficking, would he be caught by the provision? If a landlord rents premises to a tenant who uses them for the manufacture and storage of drugs, would he be caught? That will be a risk for businesses, especially those that have no legal obligation—or indeed right—to inquire about the use of otherwise legitimate equipment. It is also a risk for the small person, who may not sensibly be in a position to make such inquiries.
It may be argued that the definitions in clause 5 will oblige the court to disregard activity that the defendant shows to be reasonable, but that is pretty vague. Moreover, that in effect puts the defendant in the frame, according to the civil standard of proof—like the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd), I am not at all satisfied that such matters will be dealt with according to the criminal standard—and the result is that a reverse burden of proof is placed on the defendant who chooses to assert his innocence and demonstrate that what he did was reasonable.
That is wholly unacceptable. The scope of the provision is too wide, and Justice has pointed out that it mixes ASBOs with some aspects of control orders issued under the prevention of terrorism Act. The UK courts have found that ASBOs are civil rather than criminal in character, but the status of control orders has not yet been fully determined. The House of Lords has yet to decide the matter, and it seems inappropriate for the Government to be creating the sort of hybrid that I have described while we still await clarity in respect of control orders from the highest court in the land. That determination may very well affect the interpretation of the orders proposed in the Bill.
As has been observed, the Government domesticated the European convention on human rights in our law, and most informed observers consider that it is most uncertain that the European Court of Human Rights will agree that SCPOs are civil in character. Indeed, there are some doubts about whether it considers ASBOs to be civil in character, but the proposed orders are more draconian and so are more likely to be regarded as criminal.
The Government are going down a most dangerous route with this Bill, and we must be very wary. I know that the fact that the Opposition do not intend to vote against the Bill will not be taken as an indication that we believe that all is well with it. The Minister said that we should look in Committee at the use of intercept evidence, and the Bill’s proposals in that respect are good. My experience leads me to believe that they are worthy of sensible consideration, but I hope that he will be open minded about the much more troubling elements of part 1. We need to examine them very carefully before we commit ourselves to anything.
There is little doubt that the threat to this country from organised crime remains high. In its annual plan for 2007-08, SOCA notes that broad estimates put the economic and social costs of serious organised crime, including the costs of combating it, at more than £20 billion a year.
Increasingly, serious organised criminals have exploited advances in technology to develop new crimes and to transform older ones. A recent report for ACPO’s economic crime portfolio on the nature, extent and economic impact of fraud in the UK said that the known costs of fraud, and of dealing with it, amounted to at least £13.9 billion in 2005, and possibly more. Of that, fraud against private individuals amounted to £2.75 billion, and public sector fraud losses were estimated at £6.34 billion.
Against that backdrop, it is right that we examine carefully the powers available to law enforcement agencies, and the measures intended to assist in the fight against serious and organised crime. However, today’s debate has highlighted starkly the questions of whether the powers proposed in the Bill are appropriate, proportionate and reasonable, and whether they will achieve the Home Secretary’s stated desire when he set the measures out. Then, he said that he wanted
“to bear down on the people actively engaged in organised criminal activity in the UK”
“help bring them to justice faster and more effectively.”
Today’s debate has raised some considerable doubts about that. Particular questions have been asked about whether the Bill will make a difference, as well as about its scope and proportionality. It is a pity that no Government Back Benchers thought the issue serious enough to merit making a contribution to the debate.
Many of the comments made in the debate centred on part 1 of the Bill, and the proposal for SCPOs. In his extraordinarily powerful speech, my hon. and learned Friend the Member for Torridge and West Devon (Mr. Cox) highlighted many serious concerns about the import of the Bill, including what he described as the bypassing of the criminal justice system. He also asked whether the Bill was aimed at the Mr. Bigs, or the peripheral players on the outside.
My hon. and learned Friend the Member for Torridge and West Devon also examined the fundamental issue of the burden of proof and the need for jury trial, and asked whether paper evidence would be submitted before a criminal trial that might have an impact on subsequent criminal proceedings.
My hon. and learned Friend the Member for Harborough (Mr. Garnier) highlighted the legislative fatigue suffered by the House, and said that 34 Bills had been repealed, repealed in part or not fully implemented. That point was also made by the Opposition Front-Bench spokesman, my hon. Friend the hon. Member for Arundel and South Downs (Nick Herbert), and by the hon. Member for Taunton (Mr. Browne), who speaks for the Liberal Democrats.
My hon. and learned Friend the Member for Harborough also looked at the definition of serious crime and the potential extension by order of the list of offences. He suggested that the definition of the extent and scope of serious crime, which the Opposition will contest, offered some certainty, but I wish the matter was that simple. I draw his attention to clause 2(2), which states that the court itself will be able to determine whether something is
“sufficiently serious to be treated for the purposes of an application”
under the Bill. That tells me that further uncertainty remains, and that the Bill’s elliptical definition leaves a real doubt as to the Bill’s scope and the extent of its application.
The hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) made an important point about the standard of proof needed when an SCPO is applied for, and I shall say more about that later in my remarks. He asked about the justice and appropriateness of an ability to create a virtual house arrest for ever and a day. Those are very serious matters in the context of the human rights issues that he highlighted, and we shall need to examine them closely and carefully as scrutiny of the Bill continues in Committee.
My hon. Friend the Member for Newbury (Mr. Benyon) spoke of the potential shift in the balance between the individual and the state, and about the implications of the Bill’s ambiguous and uncertain language. He also drew on his experience as a member of the Home Affairs Committee in respect of the gun crime amendment agreed in the other place, and we will examine that provision closely to see whether what the Minister said about its necessity and scope was correct. We will look at that matter in detail to determine whether it should remain in the Bill, subject to appropriate amendment and consideration.
Finally, my hon. Friend the Member for Bromley and Chislehurst (Robert Neill) asked whether the Bill was to some extent motivated by expediency, and he also pointed to its lack of specificity. There is little doubt about the concerns that have been expressed, but the Minister in the other place, Baroness Scotland, portrayed the SCPOs as a practical way to stop crime happening. On Second Reading there, she said:
“These orders are not about punishing people without proof; they are not punitive. Rather they are proposed to be preventative.”—[Official Report, House of Lords, 7 February 2007; Vol. 689, c. 729.]
However, if prevention is the key, as she suggests, recent history indicates that the new orders are unlikely to fare well.
As we have heard, SCPOs have been described as hybrid of ASBOs and control orders. Yet breaches of ASBOs are running at around 60 per cent., and there have been obvious examples of the failure of control orders—a third of them have been breached, and six people remain at large. In that context, when the Under-Secretary of State for the Home Department, the hon. Member for Gedling (Mr. Coaker), winds up, will he indicate to the House what measures will be implemented to monitor compliance with the orders, and what degree of compliance will be expected? Alternatively, is it expected that the orders will in fact be breached—as has been suggested—and that their whole purpose is to secure a custodial sentence? Is the deliberate aim of the measures to find a way round the criminal justice system? When the Minister opened the debate he was at pains to stress that that was not the case, but those issues need careful and close examination to ensure that the fears expressed with some passion from the Opposition Benches are not borne out and that if appropriate protections are still required they are included in the Bill.
There is a more general question about whether the orders are the right way to proceed. The Law Society briefing for the debate notes:
“Where there is evidence that a person is engaged in criminal activity, that evidence should be gathered with a view to prosecuting them. We fear the proposed orders are a measure of expediency to deal with cases where a prosecution is not possible because there is insufficient evidence.”
It is interesting that the Bill contains no provision for consideration of whether a prosecution is possible before application for an SCPO. The Prevention of Terrorism Act 2005 incorporates such protection in relation to control orders and requires that the possibility of prosecution be kept under review for the duration of the order, yet the Bill does not. The Minister needs to explain why not.
The Minister may suggest that the orders are intended to be targeted only at Mr. Bigs and that only a relatively small number will be sought, but there is nothing to stop prosecutors applying for them as a matter of course if they are not confident that they have enough admissible evidence to obtain a conviction from a jury. The position is made more complex by the likely interpretation of the orders by the courts—a point made eloquently by my hon. and learned Friend the Member for Torridge and West Devon and also by the hon. Member for Meirionnydd Nant Conwy. The McCann case in the House of Lords was highlighted in the context of antisocial behaviour orders; it was suggested that in certain circumstances, for fairness, something close to the criminal standard would be applied, yet clauses 34 and 35 show clearly the intention that the civil standard should apply. We need clear legal analysis of the impact of those provisions. If the House, in full knowledge of the McCann judgment, decides that it wants to include that provision in the Bill, is it open to the courts to say that is what would happen? I hear what the Minister has said and I note the comments of Baroness Scotland in the other place, but there is room for uncertainty. We should always aim for certainty in legislation, so we should consider including a provision in the Bill so that the matter is put beyond doubt.
The Bill provides for the admissibility of intercept evidence in cases involving serious crime. For the reasons outlined by my hon. Friend the Member for Arundel and South Downs, we are reserving our position on those provisions until the basis of the Government’s approach to the Privy Council review is clear.
The Bill includes provisions to facilitate greater data sharing and data mining in the fight against fraud. It is entirely appropriate that we make the best use of data systems to detect and prevent fraud, but the measures must be proportionate and balanced against the need for general personal privacy. The Bill introduces wide-ranging powers that could allow, for the first time, widespread data sharing between the public and private sectors. It could overturn the basic data protection principle that personal information provided to a Department for one purpose should not in general be used for another. Instead, information will normally be shared in the public sector, provided it is in the public interest.
Although the Audit Commission’s national fraud initiative, on which the Bill’s data-mining provisions are based, is important, it is essential that protections be clear and robust. As Members have said, random computerised phishing exercises into our personal data would not be acceptable. In the other place Baroness Scotland gave assurances about the data-sharing provisions. She said that the Government
“will ensure that the provisions are used to target suspected fraudsters rather than simply those who are potential fraudsters”.
The Minister made the same point when he opened the debate. Baroness Scotland also said that the Government would ensure that
“the arrangements are transparent and command public confidence, are proportionate and are subject to periodic review”.—[Official Report, House of Lords, 7 February 2007; Vol. 689, c. 732.]
The role of the Information Commissioner will be an essential part of ensuring that the Bill’s provisions are appropriate, and it may need strengthening in that context. We shall examine that point in greater detail in Committee. We look forward to the detailed proposals for a code of practice—a promise made in the other place and reconfirmed today. Some progress was made on the issue in the other place and I pay particular tribute to the work of my noble Friend, Baroness Anelay, but there is more work to be done.
The Information Commissioner has warned of the steady drift to a surveillance society, which the provisions in part 3 could indicate in terms of the Government’s approach to taking, retaining, sharing and searching our personal information. Protections may exist under the Data Protection Act 1998 and the Human Rights Act 1998, but the House must be satisfied that the Bill’s provisions are sufficiently focused on tackling crime and that appropriate protections are afforded to ensure that the general rights of ordinary members of the public are not compromised by wide-ranging snooping powers justified on the basis that something useful “might come up” from the information obtained.
The Bill will transfer the Assets Recovery Agency to the Serious Organised Crime Agency. Despite what the Minister for Security, Counter Terrorism and Police says, the ARA has been a failure. The Chairman of the Public Accounts Committee, my hon. Friend the Member for Gainsborough (Mr. Leigh), recently summed up its performance by pointing out that it had spent £65 million but recovered only £23 million; has no complete record of the cases referred to it; has worked on more than 700 cases but managed to recover assets in a mere 52; and that 90 per cent. of the financial investigators trained by it have not even completed the necessary courses. As my hon. Friend said,
“the criminal fraternity are laughing at us, are they not?”
It is thus hardly surprising that the Government felt compelled to take action, which is why the Bill proposes to transfer the assets recovery functions of the agency to SOCA and its training functions to the National Policing Improvement Agency. However, the National Audit Office report on the ARA made various recommendations that will apply equally to the new bodies responsible for its current functions; case management was highlighted as a particular weakness. In assessing the provisions for transferring the operations of the ARA we will need to be satisfied that there will be appropriate measures to address the evident performance failures and the issues highlighted by the NAO report.
Transparency is needed, particularly in the future performance of SOCA, which has not been subject to detailed public scrutiny to date. In evidence to the Public Accounts Committee, the Comptroller and Auditor General gave an assurance that it would continue to be possible to assess whether the costs of the asset recovery function of the SOCA exceed or are less than the assets it recovers, confirming that a proper system of management accounts will be put in place. For the House to have confidence in the arrangements proposed in the Bill, mechanisms for proper, robust, external scrutiny of SOCA are essential. After the failure of one agency, it is important that the House can review the performance of its replacement and that the information can be made public.
We welcome the inchoate offences provisions, which build on the excellent work of the Law Commission. In the other place, the Government set out some of the rationale for their divergence from some of the Law Commission’s original proposals, but we will use opportunities in Committee to probe the detail of their proposals to ensure that the appropriate balance has been struck. We shall also examine carefully the extended powers being granted to Her Majesty’s Revenue and Customs.
There is a shared desire on both sides of the House to ensure that those involved in serious crime—crime that harms this country and damages the lives of those it touches—are brought to justice, that the law enforcement agencies are given appropriate powers to disrupt the activities of organised criminal gangs, and that the Government and other agencies are able to use information in a constructive way to facilitate the fight against fraud. However, serious questions remain as to whether the provisions of the Bill will advance this cause and whether, by virtue of the breadth of the Bill’s scope and the practical operation of its provisions, it may undermine some of the fundamental values and freedoms that the House should be seeking to uphold and protect. That is where Conservative Members will maintain our focus and will challenge the Government robustly when we believe that they fall short.
I start by saying a couple of things about the general tenor of the debate. I welcome very much the thoughtful and passionate contributions that hon. Members have made. I thank the hon. Members for Arundel and South Downs (Nick Herbert), for Hornchurch (James Brokenshire), for Taunton (Mr. Browne), the hon. and learned Member for Torridge and West Devon (Mr. Cox) the hon. Member for Bromley and Chislehurst (Robert Neill), who has apologised for having to leave early, the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd), the hon. and learned Member for Harborough (Mr. Garnier) and the hon. Member for Newbury (Mr. Benyon) for their contributions to the debate. If I do not answer all their questions in my remarks, I hope that we will, as they have suggested, return to many of them in Committee.
I accept absolutely that all Members on both sides of the House are determined in their efforts to tackle serious crime. I say that because it is an important point to make. There may well be differences, debates and arguments about some of the proposals before us, but I do not ignore the fact that all Members are dedicated to working towards the same aim.
I have listened with interest to the debate and some hon. Members have referred to centuries of tradition. The hon. Member for Taunton said that I had answered a parliamentary question today, which I have, about mandatory minimum sentences of five years for the possession of a handgun. He pointed out that although Parliament had passed the provision, the judiciary, in determining the appropriate sentence, had not in all cases given the five-year sentence. That is because the legislation gives the judiciary the opportunity to take account of exceptional or extenuating circumstances—I cannot remember the exact phrase in the law. The hon. Gentleman cannot castigate me for being responsible for legislation that does not result in the judiciary automatically giving a five-year sentence and then, two minutes later, castigate me, my hon. Friend the Minister for Security, Counter Terrorism and Police and the Government for undermining centuries of tradition if we are not able to dictate to that same judiciary that it should have no independence and that it should automatically and without any reference to extenuating circumstances apply the five-year sentence.
I make that point because it is fundamental to this debate. We cannot pick and choose with respect to constitutional principles. The hon. Gentleman chose to have a go at me and the Government about the minimum five-year sentence and will no doubt suggest that the Government are failing on gun crime because it is not being applied, but he then said that the Bill was a wicked erosion—I paraphrase—of centuries of tradition in this country since the Magna Carta.
I did not wish to cause the Minister personal offence. The point that I was trying to make was that when there was an outbreak of public concern about gun crime and the Prime Minister called a “gun summit” at No. 10 Downing street, and legislation on gun crime went through the House in various criminal justice Bills to put in place a mandatory five-year sentence, the overall effect of that range of activity was to convey to the public that the Government were tough on crime and, by implication, that the other parties in the House were less tough on crime. I was making the point that legislation is not always brought before the House with the intention of trying to make the laws of the land more effective; it is there for presentational purposes and to have an “eye-catching” approach, as the Prime Minister put it. Quite often, it does not actually work in practice.
With respect to the hon. Gentleman, the point that I was making, as I think every other hon. Member appreciates, was that one of the problems of an independent judiciary is that it sometimes makes decisions or interprets the law in a way that he and others find difficult. The hon. and learned Member for Torridge and West Devon said that centuries of tradition were in danger of being swept away, but all that I was saying is that people sometimes see centuries of tradition being swept away when they disagree with something that the Government propose. As with all things, we need to reach a compromise.
I am grateful to everyone for contributing to the debate and will now turn to some of the points that have been made. On serious crime prevention orders, I emphasise the potential usefulness of a flexible measure against those who engage in insidious crimes with intelligence and adaptability. The orders can be made only, as McCann stated, when it can be proved beyond a reasonable doubt that the subject has been involved in serious crime. The conditions contained in the orders will only be preventive, not punitive, and will be entirely in accordance with the European convention on human rights.
Two categories of points seem to have been made in the debate: those about principle and those about practice. On principle, the main points were about whether the orders would be a means of circumventing the criminal process. One particular point made by Opposition Members was why we would want to prosecute when we can seize assets and impose major restrictions on liberty on the basis of an ex parte hearing. Those who made that point were wrong. It will not be possible to seek these orders on an ex parte basis and the interpretation of the way in which the orders work is a complete misunderstanding of the Government’s intention. The orders will not be an easy option to be used in place of criminal prosecution—their purpose is completely different. Prosecution is about punishing previous actions, whereas these orders are about preventing future involvement in serious crime.
In addition, to assert that the orders are an easy option is to misunderstand and underestimate the role and expertise of the High Court. The applicant authority will have to convince the High Court, to a standard that we expect to be close to beyond reasonable doubt, that the proposed subject of an order has been involved in serious crime. That will be no simple task. As we may recognise, High Court judges do not fall over themselves to agree necessarily with the Government’s view. The court is a public authority for the purposes of the Human Rights Act 1998 and so will only make an order that is reasonable, proportionate and compatible with convention rights.
The Minister says that the orders will be dealt with on the basis of reasonable doubt, and I have every respect for those who are briefing him. I am sure that they know a great deal. However, the reality is that the consultation document that his Government produced made it clear that one of the main reasons for introducing the orders is that, in some circumstances, they would not be able to acquit themselves of the reasonable doubt standard. In cases in which evidence fell below that standard, there would be a justification for the order. The Minister is making a good speech and I applaud and commend the tenor of it, but with respect, he cannot have it both ways. If the reasonable standard test is too high, the civil standard of proof will be used, not reasonable doubt.
The remarks that I am about to make will answer the hon. and learned Gentleman’s question, at least in my eyes if not in his. Clauses 34 and 35 set out that the civil standard will be applicable. However, we accept that that standard is flexible and that, in the light of the House of Lords judgment in the case of McCann, the court will probably expect the heightened civil standard of beyond reasonable doubt to apply when deciding whether a person has been involved in serious crime. If the hon. and learned Gentleman reads the McCann judgment, he will see that it makes it clear that there is a flexible standard that can be applied to civil orders and that, in respect of involvement in serious crime, the expectation would be that the level of evidence required, if not identical to the criminal standard, would be nearly identical to it. He may disagree with the House of Lords judgment, as the hon. Member for Meirionnydd Nant Conwy did, but—
Perish the thought, as the hon. Gentleman says. I did not mean to do that at all. All that I was trying to do was point out that we think that the McCann judgment is very relevant to the application of evidence when it comes to serious crime prevention orders.
I do not want to add more confusion where there is plenty already, but in my experience, in a civil proceeding that may involve criminal allegations, the court, in order to be persuaded of those allegations, will still apply the civil standard, but it will slide up the civil standard. If there is an allegation of murder, the court will require to be better persuaded than if there is an allegation that somebody parked on a double yellow line. That is simply a flexible application of the civil standard. The Minister should not persuade himself that the Bill—[Interruption.] The Minister can take the advice of the Leader of the House or my advice—I think that I have practised a little longer than the right hon. Gentleman. The Minister is making a false argument if he is relying on McCann to demonstrate a point that plainly is not the case.
I am not making a false argument. The argument that I am using is the argument used by the House of Lords in its judgment with respect to McCann. The application of that judgment to serious crime prevention orders will be particularly useful.
In schedule 1, we have laid out a list of the offences that we regard as serious. As hon. Members have pointed out, the list is not exhaustive, but we think that it will be an important guide as to what we mean when we talk about serious crime.
Moving on from serious crime prevention orders, a number of issues will obviously be debated in Committee. We expect there to be a full debate and, following that debate, we will have an extremely useful additional tool to combat serious crime. The data sharing and data matching proposals will make a significant difference in detecting and preventing fraud. We are involved in close discussions. As hon. Members will know, because we have set up meetings between all hon. Members and the Information Commissioner, the Information Commission is broadly satisfied with the proposals in the Bill. We will continue to consult with the Information Commissioner to make sure that that continues to be the case.
Many of our constituents will be surprised that some of the data sharing that the Bill allows—to prevent and detect fraud—is not already allowed. Rather than be concerned about the implications of the measures, as some hon. Members are, they will wonder why those measures have taken so long to come about. Of course, we have to have the appropriate safeguards, but this is about using information technology and the various means at our disposal to deal with serious crime.
Hon. Members have mentioned the merger of ARA and SOCA. Many of the current clients—if I can put it that way—of the Assets Recovery Agency are people who are involved with serious crime. The synthesis and merger of those two agencies will benefit law enforcement when it comes to taking assets from criminals, whether through the civil recovery route or the enhanced powers that we intend to give others through changes to the Proceeds of Crime Act 2002. Many of our constituents would want us to continue the improvements in practice when it comes to taking ill-gotten gains from criminals.
My hon. Friend the Minister for Security, Counter Terrorism and Police dealt with the question of the use of intercept as evidence. No doubt that will be the subject of further debate in Committee.
We intend to remove from the Bill Lord Marlesford’s amendment on guns, which we regard as disproportionate. The Association of Chief Police Officers supports the Government’s position. Lord Marlesford’s amendment is unnecessary. Hon. Members who are concerned about the Government’s attitude to civil liberties should note that we believe that what Lord Marlesford’s amendment does—it allows a police constable, on his own, to designate an area, unspecified in size, in which to stop and search and/or question anybody—is disproportionate and an infringement of our civil liberties. I ask hon. Members who have talked about civil liberties to look carefully at that amendment.
I have rattled through my speech, under pressure to be as succinct as possible, but I do not want to disguise the fact that this is an extremely important Bill that will make a serious and significant difference to our ability to tackle serious crime, which is something on which we can all agree. I look forward to the debate in Committee as we seek to improve the Bill still further.
Question put and agreed to.
Bill accordingly read a Second time.