House of Commons
Tuesday 12 June 2007
The House met at half-past Two o’clock
[Mr. Speaker in the Chair]
Oral Answers to Questions
The Secretary of State was asked—
The Government have no plans to replace or review the Barnett formula, which has delivered fair, stable and transparent settlements for Scotland, Wales and Northern Ireland under successive Administrations for almost 30 years.
Public expenditure in Scotland is £8,414 per head, yet in the east midlands it is a quarter less, at £6,334. In Wellingborough, a secondary school has been demolished, there have been cuts in the police force and we do not have a local hospital. Why should the population of Wellingborough and the rest of the east midlands subsidise the population of Scotland by the massive amount of £2,080 a year? What is the justification for that huge difference in public expenditure?
In every constituency, in every part of every region and nation of this country, there has been a massive increase in public services: more schools, more doctors, more nurses. As it happens, investment in public spending in Scotland has increased in the past five years by 18 per cent., but in England it increased by 21 per cent., so there are higher rates of increase in England. As the hon. Gentleman has brought it up, I should point out that in his area there are 420 more teachers than in 1998, 163 more police officers and 62 police community support officers. In his NHS area, there are 6,886 more nurses, 725 more consultants, 353 more GPs and 548 more dentists—all on account of strong economic management by the Government—
Recently, I had the privilege of chairing an all-party review of services for disabled children. The Treasury’s response was to target £340 million for England and £34 million for Scotland. May I have my hon. Friend’s assurance that nothing in the Barnett formula will prevent us from continuing to negotiate with the Executive to ensure that funding is indeed targeted at disabled children and the needs we identified?
It is only right to point out that my right hon. Friend has done more to advance the cause of disabled children than almost any other Member of the House, and much tribute is due to him. He is right to point out that as part of the comprehensive spending review settlement for the Department for Education and Skills in England money additional to that agreed with the Barnett consequentials at the time has been made available. His point underlines the fact that, because of the strong economic performance of the United Kingdom over the past 10 years, significant sums of additional money are going to education and health in Scotland, as they are throughout the rest of the UK. Obviously, it is for each of the devolved Administrations to decide how to spend the money made available to them, but my right hon. Friend makes an excellent case that additional resources should be spent on services for disabled children, and I look forward to that happening.
When the Minister next has discussions with the Chancellor, will he also raise the issue of moneys not contained in the Barnett formula, particularly Nuclear Decommissioning Authority funding for decommissioning at Dounreay? He will be aware that earlier this year there was a severe threat to Dounreay caused by problems outside Scotland. Will he ensure that his right hon. Friend is aware of that so that such threats do not reoccur in future years?
I am happy to have that conversation and to inform the hon. Gentleman that I shall be visiting Dounreay next Friday, where I will be able to hold discussions with local management. If the hon. Gentleman wants to come along—[Interruption.] I am telling him now. Don’t start with the “no phone calls and no letters”—I am telling the hon. Gentleman now that I shall be there next Friday, so why do he and I not sit down with local management at Dounreay and discuss all those issues?
If I may, Mr. Speaker, I shall begin my answer by placing on the record condolences on behalf of the whole House on the passing of the noble Lord Ewing who served the House and Scotland with great distinction.
Since the 2005 general election, output in Scotland’s economy has grown at above the long-term trend rate. In employment terms, economic activity has increased and is now at a record high.
I certainly find myself in agreement with my hon. Friend. Last week, I had the opportunity to visit China, where I met a range of British businesses, including Scottish businesses, which are investing in that expanding economy. When one has the opportunity to meet such business people and discuss with them the challenges facing Scottish business in the global economy, it is perfectly obvious that the economic stability of the past 10 years has provided strong foundations on which to seek new markets, new prosperity and new jobs for Scotland.
On behalf of the Scottish National party, may I associate myself with the comments that the Secretary of State made about the record of public service of Lord Ewing?
Has the Secretary of State read the newly published survey of success by the Federation of Small Businesses that sadly shows Scotland lagging as the worst-performing country in western Europe? I know that the Labour party has just lost political hegemony after 50 years in Scotland, but what responsibility does it accept for this woeful state of affairs? How long will it take for the only party in Scottish politics that as yet holds out against more powers for the Scottish Parliament—the Labour party—to reassess that, join the rest of us and give the Scottish Parliament the powers to improve the economy and society of Scotland?
Notwithstanding that characteristically gracious question, may I pass on my congratulations to the hon. Gentleman on assuming the leadership of the Westminster group of his party? I fear, however, that he will continue to articulate a case of “Scotland the Victim” rather than “Scotland the Brave”. If one actually takes the opportunity to consider the FSB index of success report, one will recognise that Scotland is above Switzerland, Sweden, Ireland, Iceland, Denmark and Norway in terms of educational attainment. Scotland ranks seventh out of 32 for employment, representing equality of opportunity and how that comes about.
Of course, it is right to recognise that we face a very considerable challenge in terms of life expectancy and public health. Those areas of responsibility touch on the issue of poverty, for which both this House and the Scottish Parliament have responsibility, but I fail to see from the hon. Gentleman’s argument how additional powers would help the Scottish Parliament, given that it has responsibility for health policy in Scotland. If he is concerned about health inequalities in Scotland, he will be better discussing them with the First Minister.
May I associate myself with the Secretary of State’s remarks about the sad passing of Harry Ewing, who contributed an enormous amount to my election in 1992 when I defeated Jim Sillars of the SNP—a fact greatly welcomed by all concerned?
Is the Secretary of State aware that unemployment in my constituency has come down by more than 50 per cent. since 1997, but is he also aware that I am still not satisfied? Can he therefore tell us when he will be arranging for there to be an announcement about the orders for the two aircraft carriers?
I know of long standing that my hon. Friend is always proud but not satisfied in relation to employment in his constituency. His constituency is just one of the many constituencies—not just in Glasgow or west central Scotland but across the whole of Scotland—that has seen unemployment tumble in recent years as a direct consequence of the economic stability of which I was just speaking. Of course, much further work needs to be done in Glasgow, and it is the case that Ministry of Defence orders to British shipyards in Scotland have contributed significantly to the employment success that has been achieved in recent years. However, this Government recognise that more needs to be done.
I echo the tributes to Lord Ewing and, in particular, pay tribute to his role as joint chair, along with Lord Steel, of the Scottish Constitutional Convention that delivered many of the changes that Scotland benefits from today.
May I concur with the Secretary of State that many parts of Scotland are performing well and have the potential to develop more strongly? However, for that to happen in places such as the north-east, we need continual investment in infrastructure—for example, the western peripheral route and a commuter rail service between Inverurie and Stonehaven—and a regime for oil, gas and energy that encourages long-term development and investment. For businesses in my constituency, being part of a strong Scotland within a strong United Kingdom is an overwhelming priority.
Somewhat unusually, I find myself broadly agreeing with the sentiments expressed by the right hon. Gentleman. It is of course the case that we want to see continued investment on the UK continental shelf in the North sea. Although the primary responsibility is with the Scottish Executive, it is also the case that we want to ensure that there is an infrastructure to support sustained economic growth. It is also the case that that has taken place not just on the platform of economic stability but as part of a significant global economy. That is why Scotland has enjoyed such economic success in recent years.
Act of Union Celebrations
A range of activities has been planned to celebrate the Act of Union, some of which have taken place already. As you are aware, Mr. Speaker, you and the Lord Speaker earlier today opened an exhibition in the Royal Gallery in the other place displaying some of the historic documents associated with the treaty of Union. That exhibition is due to travel to the Scottish Parliament later in the year.
Does the Secretary of State share my concern that what is undermining the Act of Union celebrations is not just the SNP victory in the Scottish parliamentary elections, but the fact that there is growing resentment in England about the unfairness of the constitutional settlement since devolution? Does he agree that the only way to ensure that we can celebrate the Act of Union in the long term—and, indeed, to save the Union in the long term—is to ensure that Scottish MPs in this House do not vote on matters that apply only to England?
I am not convinced by the case that the hon. Gentleman outlines. Opportunism is vying with principle on the Conservative Benches, as the Conservatives try to frame a policy on the United Kingdom. I am somewhat more optimistic than he is about the future of the Union, given that—notwithstanding the election of the First Minister a few weeks ago—at the elections the Scottish people overwhelmingly rejected the party that sought separatism. Two out of three votes cast were clearly in favour of the Union.
I find myself in agreement with my hon. Friend, and not simply for the historic reasons relating to the strength that the Union brings to Scotland and England—the shared history, the common geography and the trading links that we have enjoyed in recent centuries. Looking to the future, the ability to balance the strength that we draw from each other with a recognition of diversity is a powerful message to send to the whole world. What a dismal message it would send to the world if, on the 300th anniversary, people were to judge that, instead of working together, we should split apart.
The Secretary of State and the Scotland Office have played an absolute blinder on this one. Look what we have secured in this anniversary year: we have a brand-new shiny £2 coin and a brand-new shiny SNP Government in Edinburgh. Will he pledge to continue to do what he has done so well and reflect the public’s enthusiasm for this celebration by continuing to do not very much at all?
Surely the best way of celebrating this magnificent anniversary would be to reject once and for all the idea that some Members of the House should be prevented from voting on some matters before it. That is an undemocratic, anti-British proposal that would create a de facto English Parliament and lead inexorably to the break-up of Britain.
I know that my hon. Friend is tireless in his advocacy not just of his part of the west midlands, but of the case for the United Kingdom. A United Kingdom needs a united Parliament. The argument that Members on the Opposition Benches sometimes articulate—that somehow there is a great oppression of England by Scottish MPs—ignores the fact that more than 80 per cent. of the House is not composed of Scottish MPs. The House reflects the geography and the population shares of the respective nations of the United Kingdom. I am convinced that there is a strong case for having a single class of MPs who are able to legislate on the matters that come before the House. That has served us well in the past, and I believe that it will serve us well in the future.
May I associate Conservative Members with the Secretary of State’s comments about Lord Ewing?
I am sure that the Secretary of State will agree that one aspect of the Act of Union to be particularly celebrated is the retention of Scotland’s distinct legal system. So like me and Jack McConnell, was he appalled by the Prime Minister’s apparent willingness to ride roughshod not just over the Scottish legal system but over the whole devolution settlement in seeking to agree a prisoner exchange deal with Libya? What hope can we have for the continuation of the Act of the Union if the First Minister and the Prime Minister do not even communicate?
I have something of an advantage over the hon. Gentleman—not only by being educated and trained in Scots law, but by having practised as a Scottish solicitor. Greater familiarity with the tenets of constitutional law, including the Scotland Act 1998, might allow him to recognise the error of his statement. The memorandum of understanding states:
“The UK Government will seek to obtain the agreement of all three jurisdictions within the United Kingdom in each case.”
That is entirely consistent with the devolution settlement.
What is not consistent with the devolution settlement is the discourtesy that was shown to the Scottish Parliament and the Scottish Executive by the Prime Minister in failing to raise this issue before he began the discussions. Does the Secretary of State agree that the best way to celebrate the Union is to demonstrate our commitment to it in all our actions? Surely that means that when a memorandum of understanding is signed between the United Kingdom Government and the devolved Administrations it should be adhered to; that when a joint ministerial committee is set up, it meets; that when Scotland elects a First Minister, the Prime Minister speaks to him; and that if the intergovernmental relations as previously envisaged are not fit for purpose, they are revised. Is it not about time that the Secretary of Scotland showed his commitment to the Union in deeds, not words?
Forgive me, but I have some difficulty taking seriously the hon. Gentleman’s assertions of his commitment to the Scottish Parliament. This is a man who was, in one of his own memorandums, somewhat scathing in his views of his colleagues in the Scottish Parliament. On the integrity of the United Kingdom constitutional settlement in light of the memorandum of understanding, there is nothing in the memorandum of understanding that is prejudicial either to the interests of the jurisdiction that rightly continues to be the province of Scots law, and indeed of the Scottish Parliament, or to the right of the UK Prime Minister to negotiate on foreign affairs on behalf of the United Kingdom.
The Government have no current plans to make changes to the electoral system in Scotland.
We have just heard the Secretary of State say that notwithstanding the fact that two out of three voters voted to continue the Union, we face a perverse situation in which the party in government in Scotland is determined to push for independence. The Under-Secretary of State will recently have heard many of his Labour colleagues call for a return to the first past the post system, so will he instigate a review and consider returning to a simple, clear method of electing Members of the Scottish Parliament, namely the system that we have here—first past the post?
We set up an independent commission, led by Sir John Arbuthnott, to consider the consequences of having different electoral systems in Scotland. He and his commission looked into the matter and came back with the recommendation that we should not move back to first past the post, or move to the single transferable vote system right across Scotland, but that we should keep the current system as it is. It is a reflection of the fact that during the Scottish Constitutional Convention, there was an attempt to reach consensus. Perhaps if the hon. Gentleman’s party had taken part in the Constitutional Convention, it might have been able to make the hon. Gentleman’s comment at the time. We have a system and it has produced a result that we openly acknowledge: it has given the Scottish National party a one-seat advantage, but it should not think that it has any mandate whatever to break up the United Kingdom. That would be going against the clear wishes of the vast majority of the people of Scotland.
As the newly elected Scottish Executive have a good Gaelic song, doubtless the SNP could have looked forward to election victories regardless of the voting system used. However, is it not the case that Scotland’s electoral system should be a matter for Scotland’s Parliament and all the parties within its Parliament?
When looking at the Scotland Act, will Ministers consider the position that it is completely wrong that someone should be able to stand under first past the post, under the list system and for a local authority, and so may fail in the first, fail in the second and fail in the third? There are parties in which people are able to do that, whereas in our party we stand for only one position. Surely that is right.
I think that it is probably best to leave the issue to the individual parties concerned; it is up to them to make a decision on whether they should have people who are on the list, who stand under first past the post and who stand for the council, too. My hon. Friend will be aware, of course, that the Arbuthnott commission looked into that, and rather explicitly ruled it out.
I am sure that all Members want trust in our electoral system to be restored after the mess of last month’s elections, and a full and comprehensive inquiry is clearly vital to that. However, we now face the ludicrous situation in which the inquiry investigating the thousands of spoiled ballot papers will not be able to see a single one. Will the Minister tell me why he has not yet brought forward the necessary legislative changes to ensure that the inquiry is able to examine the spoiled ballot papers, and will he do so now?
We have been absolutely and consistently clear: the inquiry is independent of Government, and an independent international expert has been brought in to lead that inquiry. If I were to start second-guessing what those carrying out the inquiry might ask for, or how they should go about their inquiry, I would rightly be accused of interfering with it. We have said that we stand ready to co-operate with Mr. Gould, and so we do.
The Minister will be aware that the subject of the elections was raised at First Minister’s questions in the Scottish Parliament on 31 May, when the First Minister referred to his telephone discussions with the Secretary of State. Although I am pleased to learn that they were cordial, the First Minister also indicated his intention to push for
“a more thorough and independent inquiry”—[Scottish Parliament Official Report, 31 May 2007; c. 316.]—
into the Scottish election debacle. Will the Secretary of State and the Minister accede to that request?
The First Minister has not actually made the request, so it is difficult for me to accede to a request that has not been made. I have not had a telephone conversation with the First Minister, but I had the unalloyed joy of spending three hours with him over a curry in Renfrew a week last Sunday, and he did not raise the matter with me then, either. If he says one thing to the Scottish Parliament and does not say it in this place, that highlights the fact that he has a seat here and if he came and took his seat and served his constituents in Banff and Buchan, he could make that point to us at Scottish questions.
Energy White Paper
Scotland has the potential to benefit significantly from the Government’s energy policy, as set out in the White Paper.
But as we have seen, the White Paper may lead to a loss of investor confidence. We have lost the carbon capture and storage project in Peterhead. We need clarity from the Government for investors. To that end, will the Minister rule out entirely any liability for nuclear waste or nuclear decommissioning from new generation plant falling on the public sector?
As my right hon. Friend the Secretary of State for Trade and Industry said at the Dispatch Box on Thursday, in response to a question from the hon. Gentleman, I think, we are sorry that BP is not going to continue with the competition, but there are seven other important players in that competition. It was never the case that the Government could simply hand out the necessary awards to one particular company. Even if BP had stayed in with the Peterhead project, there is no guarantee that it would have won the competition in any event. However, the Government’s position on new nuclear build was set out comprehensively in the White Paper. It is not for the Government to build nuclear power stations. It is for industry to come forward to Government and say that it would like to build a new nuclear power station. At that point, the discussions can take place.
I too pay my tributes to Lord Ewing, who was a good friend and colleague and a great parliamentarian. He will be a loss to both Parliament and Scotland. I send my best wishes to his wife Margaret and his family.
May I press the Minister to accept that, in view of the utterances from the new leadership in the Scottish Parliament, an important issue such as the energy White Paper would be better discussed by the Scottish representatives at Westminster in the Scottish Grand Committee? I cannot think of anything more important to discuss in the Scottish Grand Committee than the energy White Paper.
My hon. Friend’s tenacious advocacy of the Scottish Grand Committee reflects well on him. It is a matter for the usual channels and the House authorities to instigate Grand Committees. I point out that since the Grand Committee stopped meeting regularly, it is possible to hold one and a half hour debates on important issues in Westminster Hall, and it is open to my hon. Friend to apply for such a debate.
Following on from the discussion of nuclear power in an earlier question, if a company wished to build a new nuclear plant in Scotland, would it be up to the Scottish Executive to make that decision or would it be up to the Department of Trade and Industry?
The situation is crystal clear. The Scottish Executive would have the final say on any application for a new nuclear power station in Scotland or even for any non-nuclear significantly large power generator, both under the Electricity Act 1989 and under planning legislation.
Central Scotland has benefited from the stability generated by the Government’s management of the economy, which has delivered above trend economic growth and the strongest labour market for decades.
May I associate myself with the remarks about Lord Ewing, who represented Falkirk in this place and will be sadly missed here?
My hon. Friend will be aware of the remarkable and historically high levels of employment in the Falkirk area. Does he agree that the future success of the economy of central Scotland, and particularly the Falkirk economy, will be based in large part on our unrivalled communication links and the intelligent use of land?
My hon. Friend is right. Unemployment in his constituency stands at 2.5 per cent., which is below the Scottish average. I am sure that Lord Ewing would have liked to be able to say that during his time representing that constituency, when throughout long periods of the last Conservative Government places such as Falkirk were severely blighted by high unemployment. Falkirk now has a wonderful opportunity to take advantage of the thriving economy in central Scotland, including the thriving financial services sector and the great improvements that are being made in the manufacturing sector. At the heart of that lie the key transport links. I know that for as long as my hon. Friend is a tireless advocate, the future will be very bright for Falkirk.
Communities and Local Government
The Secretary of State was asked—
John Hills’ review of social housing underlined the importance of promoting mobility and tackling worklessness. The report has provoked a wide-ranging debate on the role of social housing in the 21st century. We are carrying out a programme of work to address the issues raised.
My right hon. Friend will be aware that the Hills report says that of 4 million tenants nation wide, only about 5,000 to 6,000 move in any one year owing to employment-related factors, so existing mobility schemes simply do not work. Yet the number of homeless of people who live in socially rented housing is significantly higher than in any other tenures. That means that something must be done. What indications can she give us that she is considering this, and that action will be taken to help those people to get into employment?
My hon. Friend makes an incredibly important point. More than half of all social tenants of working age are not in work of any form, and enabling mobility to allow them to take up work must be an important part of our response. Of course, increasing the supply of social housing will be vital, and we plan to continue that, but we must also think about how, within our choice-based lettings schemes, at a local authority level and more broadly, we can enable people to move both within their area and across boundaries. I will say more about that later.
But following the collapse of Move UK earlier this year, when will social housing tenants in my constituency be able to move to another part of the country using something like the national mobility scheme, which the Government inherited in 1997?
The right hon. Gentleman makes an important point. I know that he used the opportunity of an Adjournment debate to raise this issue recently. Indeed, national mobility schemes are probably an important part of our response, although I point out to him that there have traditionally been far more mutually arranged exchanges than have ever taken place through a national mobility scheme. One way in which we can make this happen more quickly and easily than by resurrecting any of the old schemes—it was right that we took action when we did to correct a contract failure—is to ensure that choice-based lettings work thoroughly and appropriately to enable choice within the local authority area and, as I said to my hon. Friend the Member for Edmonton (Mr. Love), to enable people to move on a sub-regional basis across local authority areas or more widely.
According to a recent parliamentary answer to me, mobility has been falling for some time. Last night, I spoke to two tenants in my constituency. One was a single person living in a three double-bedroom flat and seeking to downsize; the other was a family of six living in a one-bedroom flat and hoping to get out of a desperately overcrowded situation. While the match is not exact, as we know, mobility can clearly make a real impact on overcrowding and on homelessness. Will my right hon. Friend commit to a major injection of energy and resources to try to get internal and external mobility back up even to the level that it was at a few years ago?
Yes, I can give my hon. Friend that assurance. My hon. Friend the Minister for Housing and Planning is working with the Greater London authority to ensure, especially in London, that incentives are given for people who want to change home, particularly to downgrade. I understand that so far about £20 million has been invested to that end. However, my hon. Friend is right to say that it is a priority. We must do more, and we are thinking about all the measures that we can take to make it easier for people to move home.
As the Secretary of State knows, in 1981, my right hon. Friend the Member for North-West Hampshire (Sir George Young), in a Conservative Government, introduced a scheme that allowed social housing tenants to move to new homes anywhere in the United Kingdom and retain their secure tenure. This year, under a Labour Government, the scheme has collapsed, scores of people have lost their jobs and tens of thousands of tenants have been left in the lurch, with no new homes to which to move and no scheme in place to offer support. After the incompetent introduction of home information packs and penal stamp duty, which have made it much more difficult for home owners to move, the Government have now made it much more difficult for social tenants to move. May we have a word of apology?
I clearly regret the failure of Move UK. It was set up to replace an already failing scheme, which did not deliver appropriate moves for tenants throughout the country. As I have already said to the right hon. Member for North-West Hampshire (Sir George Young), far more moves took place under mutually agreed exchanges than any national mobility scheme ever produced. Clearly, the performance of the new scheme was unsatisfactory and I regret that. We must now work urgently to try to develop a choice-based lettings scheme, which is a preferable method of encouraging mobility, especially because most local authority tenants want to move in their area and fairly close to home—perhaps for child care support or employment reasons—and we must then work quickly to expand that scheme so that people have the opportunity to move across the country.
Will my right hon. Friend also address the issue of enforced mobility in the social housing sector whereby people who live in terribly overcrowded conditions are forced to move away, as she says, from their jobs and homes to find satisfactory accommodation? Will she examine the Housing Corporation-funded scheme that was piloted by Luton community housing association, which enabled social housing to be extended in the same way as we have loft and other extensions in our homes, to enable families to retain their jobs, places at schools and all the links with their communities rather than being forced to move?
My hon. Friend makes an important point. It is right that social tenants have choice just as it is right for people who own their homes to choose whether to move, build an extension or convert their loft. That is precisely why we are working with the Greater London authority and others in London to give people the opportunity to convert their social homes so that they have more choice about whether to move or stay where they are.
Does the Secretary of State recognise that, if the Government’s policies push an extra 500,000 families on to the council house waiting list—as they have done—the pressure will reduce mobility, not increase it? Is not the cure to build more social housing? On balance, does she believe that mobility will be improved or worsened if the housing allocation policy of the Minister for Industry and the Regions, the right hon. Member for Barking (Margaret Hodge), were adopted nationally?
Of course the answer is to build more homes. That is why I am proud that the Labour Government are building more private sector homes as well as increasing the number of homes that are built in the social sector. The hon. Gentleman knows that the number of social sector homes has increased by 50 per cent. in the past two years. It is my priority and that of my Department in the comprehensive spending review to put new-build social housing at the top of our list. We must do more—he is right to acknowledge that. However, as he rightly says, it is a matter of increasing the supply of new housing, affordable housing and social homes.
Is the Secretary of State aware that 80 per cent. of the population in my constituency have no chance of buying into the private sector and that the only hope of those who are in overcrowded council accommodation is mobility within the borough or nearby? Yet in London, the chronic shortage of council housing means that it is impossible for many families who live in grossly overcrowded accommodation, with teenagers growing up three or four to a room, to have any chance of getting somewhere decent to live. Will the Government please invest a lot of money quickly in building council houses for rent for people in desperate housing need?
My hon. Friend is right to draw attention to a real issue. I hope that he supports the additional investment that the Government have made in increasing the number of homes available at affordable rent. We must continue to make progress on that. We are now building at a rate of around 30,000 homes a year. We must increase that further to tackle the pressures that he rightly outlines.
We have received a number of representations from home inspectors and domestic energy assessors, and we have held meetings with them and their representatives.
What message would the Minister give to recently qualified home inspectors in Vale of York and across England and Wales who at their own expense have qualified as either energy assessors or home inspectors? They did so in the expectation of earning a living in that capacity from 1 June, but now have no likelihood of earning any money before 1 August and possibly later. What is her message to them and when will she share with the House her definition of a “bedroom” for purposes of the home information pack?
Yesterday, we set out a series of further details, which included an update on implementation and proposals for supporting a number of free energy certificates in advance of August. We are also working with housing associations to bring forward energy certificates for social housing. We have been clear that we want to bring in energy certificates and home information packs as soon as possible. I hope that the hon. Lady told her constituents that her and her party’s message is that they want to abolish work for them altogether.
When I met representatives of the Milton Keynes home improvement and domestic energy assessors association a week ago, they were very clear that they understood which party in this House had been trying to get energy performance certificates moving forward and which party had been opposing it. They are also extremely keen that the Minister should lay out with even greater clarity the triggers for rolling out the energy performance certificates from four to three-bedroomed houses and then to other housing, and clarify what work will be provided from now until 1 August for those who have no other source of employment.
My hon. Friend makes an important point. As I said, we set out further details yesterday as part of our implementation update and we will provide further regular updates on the website, particularly for energy assessors across the country who want to be able to begin work at the earliest possible opportunity. This is about bringing in changes that will help cut carbon emissions from homes. That is important and we need to get on with it.
Thank you, Mr. Speaker. [Hon. Members: “Hear, hear.”] I love you!
I too have received correspondence from constituents—Mr. Stuart Little and Mr. Murray Pakes, who trained and invested many hours in becoming domestic energy assessors and home inspectors. They are now disillusioned and completely demotivated by the Government’s broken promises to them. What should I tell them about reclaiming their costs? Can they sue the Government, or shall I tell them that they will have to lose that money if, as is likely, they do not wish to proceed?
I presume that it was not me whom the hon. Gentleman said he loved as he stood up! He should very honestly explain to his constituents his party’s policy. His party has been campaigning for the end of energy certificates and for an end to the work to be done by energy assessors. We have set out a programme to bring forward the energy certificates and HIPs at the earliest possible opportunity and we have set out steps to bring forward more energy certificates in advance of 1 August.
The private contractors seem to have failed many of those who wished to train as assessors. Will my hon. Friend consider contracting directly with colleges, such as Wigan and Leigh, in order to provide the training necessary to produce the numbers required?
I would be happy to look at my hon. Friend’s proposals. Many energy assessors are now coming through the training and passing their exams, but we know that much of the uncertainty—including around the legal case brought by the Royal Institution of Chartered Surveyors against the energy certificate—deterred people from completing accreditation. Now more than 1,000 people have completed accreditation, but we clearly want more coming through so that we can introduce energy certificates at the earliest opportunity.
Does the Minister accept that her reply to the previous two questions about people who have spent £6,000 and more on training to be assessors was completely inadequate? I have a constituent in that situation who has written to the Minister saying that he is
“left in limbo, wondering when a full day’s work will ever come his way”.
What can the Minister do to make these people understand what they can do to reclaim their costs?
Again, I have to say that we set out further details yesterday and we will update them on the Department’s website so that people can be clear where work is already starting in order to start rolling out energy certificates, both in social housing and as part of free energy certificates supported by the Department. The hon. Gentleman must be honest with his constituents about his party’s policy. He has been campaigning to prevent the introduction of important measures that will cut carbon emissions from our homes by 1 million tonnes. Those measures are important, and hon. Members should stop contributing to greater uncertainty and making it difficult for energy assessors to start doing their jobs.
Has my hon. Friend’s Department ruled out the option of drawing on organisations that already go into people’s homes but which are not yet being allowed to train people to carry out the energy assessment element of the survey? Would their involvement not encourage people to come forward, so as to increase capacity? May I also say that the estate agents in Plymouth to whom I have spoken are very happy with the Government’s proposals and keen to roll out the provisions as soon as possible?
My hon. Friend makes an important point. An accreditation system was set up to support those who already had a lot of experience and might have needed only a little updating in order to become accredited. The system was known as the experienced practitioners’ route and was designed to ensure that additional energy assessors, often with different kinds of experience, were in place to carry out the work. I am afraid that that accreditation scheme has not yet delivered many people to be trained to be fully accredited. It is run by the Royal Institution of Chartered Surveyors.
The 2007 figures are not yet available. Between 2003 and 2006, there was an increase of 7,500 hectares in the green belt across the country, excluding the re-designation of the New Forest as a national park. Six regions showed small increases and three showed small decreases in the total amount of green belt land.
I thank the Minister for her reply, and I am pleased that she thinks that extensions to the green belt, where appropriate, are welcome. Does she accept, however, that the continuing policy of urban extensions, led by the market, will result in areas that have repeatedly been turned down for development—such as the so-called white land at Leckhampton, near my constituency—being placed under increasing pressure unless the protection of green belt status is extended to them? Will she reconsider the policy of market-led urban extension, which seems to encourage developers to focus on such affluent areas rather than on urban regeneration, social housing and struggling small villages, or on counties such as Cornwall, which need and want the housing more?
We certainly support the continued protection of the green belt, and that protection will need to increase in some parts of the country. It is a matter for regional planning authorities and local councils, however. The hon. Gentleman asked about urban extension and other areas needing additional housing. We all need to recognise that we need to build more homes for the next generation. We are not building enough at the moment. The number has increased substantially over the past few years, but it is still not high enough. It is a matter for local councils to take responsible decisions about where the new homes should be built and where protection is needed, but we cannot run away from these important decisions.
I am sure that my hon. Friend will accept that the formulation of a local development framework provides a good opportunity to consider whether any changes should be made to the green belt. In my constituency, the local authority is proposing a couple of sensible changes around Tinsley park, but another proposed change in the Bridle Stile area and the attractive Moss valley has been withdrawn because, although the council’s proposals would allow the land to remain as open space, it believes that putting it into the green belt would trigger a wholesale review of all the green belt in the city, with all the time and cost consequences that that would entail. Will my hon. Friend look into this matter to ascertain whether it is possible to make such marginal and beneficial changes without triggering a comprehensive review, with all the problems that that could create?
I am happy to look at the case that my hon. Friend has raised. He will be aware that we are unable to comment on individual cases, and that there are proper procedures that need to be followed when planning designations need to take place, but I will certainly look further into the case that he has mentioned.
Members will have read with interest the reference in The Times today to an interview with the hon. Member for Dagenham (Jon Cruddas), in which he talks about scrapping the green belt. Will the Minister take this opportunity publicly to reject his comments and to pledge her continued support for green belt protection? If not, is not the future of the green belt under Labour more uncertain than ever?
That is complete nonsense. We have just published a planning White Paper in which we make it absolutely clear that the green belt protection needs to continue. The green belt is important. However, the hon. Lady often uses the green belt and concern about house building in general to argue against house building. In fact, she said in response to the White Paper that regional assemblies were building too—
Of course it is not just about the quantity of green belt, but about the quality and whether it is publicly accessible. One of the positive legacies of the former Greater Manchester council 21 years ago was the transformation of the old industrialised river valleys into pleasant open spaces and country parks. Does my hon. Friend agree that it is important in urbanised areas such as Denton and Reddish that we not only look after and protect these open spaces from unwarranted encroachments by the industrialised and urban areas surrounding them, but look to build on them and extend them further to create more open spaces for my constituents?
My hon. Friend is right. We need to ensure that the quality of the environment is improved. That includes green spaces on the edge of towns and those in towns as well. That is why we have made investing in the environment and green spaces a priority across areas such as the Thames Gateway, because it is important that local communities have access to good quality open space.
Revenue Support Grant (Worcestershire)
The current formula grant distribution system is designed to take into account the individual circumstances of each local authority relative to all others. The Government consider that a fair way of distributing grant to local authorities.
I find the Minister’s answer somewhat disappointing. May I impress on him the situation in Worcester, where in education, for example, the gap 10 years ago in pupil spending per year between us and Birmingham was a matter of a few hundred pounds, which was condemned by Labour candidates at the time? That gap is now in excess of £800 a year and rising. I implore him to go back to his Department, look again at the way in which the figure is calculated and consider whether, for example, Worcestershire should be given area cost adjustment status, which is given to neighbouring Warwickshire, with a similar geographic location and similar demographics. That would at least begin to address some of the appalling unfairness shown to the people who live in Worcestershire.
In comparing the hon. Lady’s authority with Birmingham, she fails to point out that the revenue of both has risen substantially. It is only fair to mention that. Of course, the dedicated schools budget is a matter for the Department for Education and Skills. However, I take on board her point about the area cost adjustment. Like the rest of the House, she will have to wait for the formal consultation on the formula grant distribution system, which is especially important this year as we intend to make a three-year grant settlement.
The Minister talks about substantial increases, but one thing that has increased substantially in Worcestershire is the council tax, which in 10 years has gone up by 120 per cent., caused by unfunded burdens and fiddle-funding. Who is responsible for this massive increase in its council tax? Is it 10 years of the current Prime Minister or 10 years of the current Chancellor?
It is neither; it is Worcestershire county council that sets the council tax. Before the hon. Gentleman gets too lost in his soundbites and clichés, let me point out that the grant floor, which he presumably opposes, protects Worcestershire county council to the tune of £2.9 million. I presume that he is not asking me to get rid of that floor.
The Government of course welcomed the all-party parliamentary inquiry into anti-Semitism, and published their response in March this year. We have set up a cross-Government working group to act on the all-party group’s recommendations. Jewish stakeholders and others have been invited to the first meeting, which will take place on 20 June.
I congratulate my hon. Friend on the stance he has taken on this issue and on combating extremism, but does he agree that by singling out Israel from all other nations, including Iran, China and Sudan, the proposed boycott of Israel is likely to exacerbate the anti-Semitism identified in the all-party parliamentary report?
As my hon. Friend knows, I strongly condemn that decision. I consider it a terrible decision. I was pleased to learn that the Minister for Higher Education and Lifelong Learning, my hon. Friend the Member for Harlow (Bill Rammell), had travelled to Israel to make that very point. I strongly support what he said there—as, I suspect, does the whole House, including the Opposition parties.
May I say how much many of us welcome what the Minister has just said?
One of the key recommendations of the all-party report was that there should be a clearer definition of anti-Semitic offences so that we could do something to improve the appalling conviction rate, which is only about one in 10. What progress has been made in that regard?
Two issues are involved. One is the work of the Crown Prosecution Service, which has taken the matter up as a result of the work of the all-party group—on which I congratulate it again—and the second is the working definition of the European Union, to which, as the hon. Gentleman knows, the United Kingdom has signed up.
Is my hon. Friend aware that the passing of a resolution by the so-called academics is not the first instance of the pursuing of such a course by this particular organisation? Is it not worrying that there is an underlying and pervasive atmosphere which accepts that anti-Semitism is perfectly normal, and should we not be doing all we can to combat that in every conceivable way?
I agree wholeheartedly, and I think it very important for Parliament, as well as Government, to issue that condemnation. I believe we can unite strongly on the issue. I know that Sally Hunt, joint general secretary of the University College Union, is very concerned about it.
On a personal note, as a former leader of the National Union of Students let me say that—again, on a cross-party basis—we have always opposed anti-Semitism, as well as the way in which some people, no doubt deliberately, confuse condemnation of Israel with anti-Semitism.
We are currently consulting on proposed changes to permitted development rights for householders. Developments with no impact beyond the host property would be permitted, and clear limits on size and siting would set out what was allowed. It is estimated that the number of householder planning applications would be reduced by about 85,000.
This is a twofold protection. It not only strengthens the rights of other householders to object, but it strengthens the right of the individual householder to know exactly what is permitted. It is like the old volume allowance, but with clear guidelines. As I have said, we expect the number of planning applications to fall by about 85,000, and that in itself would help to speed up the planning system.
Elsewhere in Europe, local authorities have been able to speed up the planning application process while also speeding up the process of change to a renewable and sustainable energy agenda, because they are allowed to set clear terms and requirements for collection and recycling of water and the incorporation of energy-generating systems in any planning developments. Is the Minister contemplating adopting the same system across the board in the United Kingdom, so that all local authorities can be clear about the change agenda?
My hon. Friend makes a valid point, and we are consulting on making microgeneration much easier for individual households on smaller scale developments. We have to get a balance between ensuring local flexibility and allowing every single local authority to do something completely different, which could then hamper progress towards developing greater take-up of new technologies. It is important, at the same time, that we have a degree of flexibility for local authorities. The key is to ensure that we move as quickly as possible to increasing microgeneration.
New housing is now at its highest rate for 20 years but we need to go further, given the serious pressures on affordability. Regional assemblies also need to do more. That is made harder in my hon. Friend’s region because of the approach of the South East England regional assembly, which is arguing, unfortunately, for cuts in the level of house building.
Does my hon. Friend have any words for those on the Conservative-dominated regional assembly, who on one hand tell my constituents that the south-east is to be concreted over, and on the other shout about the need for more affordable housing? I find that despicable and unfair; those people should see how desperate some of the hard-working families at our constituency surgeries are for new housing.
My hon. Friend is completely right. We have an ageing and growing population, with more people living alone. We need to go further and build more homes for the next generation; it is not fair on them if we do not. Frankly, the approach of the Conservatives in the south-east is bonkers.
Point of Order
On a point of order, Mr. Speaker. Yesterday I raised with you an issue concerning the Ministry of Defence not answering a named-day question. I thank you for your work in ensuring that I will at least get an answer today. I understand that the Minister of State signed off the answer on his way to Brize Norton last night.
Unfortunately, I have to draw to your attention another lapse by the Ministry of Defence, to which I drew the notice of the Under-Secretary of State for Defence, the hon. Member for Halton (Derek Twigg), this morning. Yesterday, the MOD published a news release about the extension of the medical assessment programme and briefed the media. It was only today that the Under-Secretary thought it appropriate to publish a written statement to Parliament. What can be done to make sure that the Ministry of Defence takes seriously its responsibilities to this House before it publishes information to the media?
Freedom of Information (Amendment) (No. 2)
I beg to move,
That leave be given to bring in a Bill to amend the Freedom of Information Act 2000; to remove the provisions permitting Ministers to overrule decisions of the Information Commissioner and Information Tribunal; to limit the time allowed for public authorities to respond to requests involving consideration of the public interest; to amend the definition of public authorities; and for connected purposes.
Friday 18 May 2007, when Members of this House, aided and abetted by Labour and Conservative Front Benchers, backed the Freedom of Information (Amendment) Bill, will surely go down in history as one of the most dishonourable and embarrassing days in this Parliament. The arguments deployed in favour of the Bill were spurious and specious and collapsed after the most cursory scrutiny.
Members of this House—those who were whipped into voting for the Bill and those who failed to anticipate the skulduggery and subterfuge in which Front Benchers were willing to connive that Friday—have an opportunity to repair some of the damage caused by that capricious and self-serving vote—
Thank you, Mr. Speaker. I will attempt to do what I am being encouraged to do.
In an article headlined “House of Knaves” in The Daily Telegraph, the vote was described as “an abysmal decision”, with MPs
“acting in a way uncomfortably reminiscent of Communist officials in East Germany”.
The Daily Mail headline was no more flattering:
“MPs’ freedom of information cover-up is a dark day for democracy”.
The Sun was characteristically blunt:
“MPs back squalid secrecy Bill”.
Thank you, Mr. Speaker. I am about to do so.
My Bill will demonstrate to our constituents that Members are committed not only to protecting freedom of information legislation, but to reinforcing it. It will strengthen freedom of information powers in three key areas: it will remove the ministerial veto; it will limit the time allowed for public authorities to respond to requests involving consideration of the public interest; and it will extend the range of bodies covered by freedom of information legislation.
It is, of course, true that the ministerial veto has never been exercised. Members might consider that to be a reason for maintaining it, as Ministers have shown considerable self-restraint in not exercising it. I prefer the contrary argument: if it has not been used, it is because the safeguards work and there is no need for a veto. Furthermore, the fact that the veto has not been used does not mean that Ministers are not actively considering using it. In a letter to Lord Falconer, the Secretary of State for Trade and Industry said he wanted to
“guard more effectively against the incremental harm to the policy development process that must inevitably arise from the disclosure of individually innocuous submissions”.
It is not clear to me exactly how individually innocuous submissions become lethal when accumulated. The Secretary of State went on to bemoan the
“discernible trend within the Information Tribunal that decisions on the public interest test have not been falling in the government’s favour in key cases.”
Most Members will agree that that is good news. However, in response to the tribunal’s failing, the Secretary of State is considering exercising the Cabinet Minister veto to annul those decisions. Clearly, therefore, one senior Minister is considering exercising the veto.
As a consequence of yesterday’s information tribunal decision that the Deputy Prime Minister must hand over documents relating to Vauxhall towers—a development that the local council and UNESCO opposed—the right hon. Gentleman might also be considering use of the veto. We need to get rid of the veto before Ministers develop a taste for it.
I shall now turn to the subject of time limits within which public authorities must respond to public interest freedom of information requests. In 2006, there were 1,326 requests to central Government Departments, and extensions were taken beyond the 20 working day period in order to consider whether information should be disclosed on public interest grounds. That is allowed as public authorities can use whatever time is “reasonable in the circumstances” to consider the Act’s public interest test. Figures from a Ministry of Justice publication show that 211 of those extensions were for between 21 and 30 days, 125 were for between 31 and 40 days, and 370 were for more than 40 days—although for how much longer than 40 days is not known.
If my Bill is passed, all such requests—totalling more than 700 in that year—will receive a response in less than 40 days. Departments such as the Home Office—which set a new record of 18 months for tardiness in answering a Freedom of Information Act request—would no longer be able to use delaying tactics to postpone the release of embarrassing information. Ben Leapman, The Sunday Telegraph home affairs correspondent, is familiar with that tactic. He sought information relating to the Soham murderer, Ian Huntley, and security lapses at Woodhill prison, and he had to wait I8 months for a response to the request. The reason for the delay was simple: the Home Office’s desire to hold back sensitive—in other words, damaging—information. My Bill would stop freedom of information requests being kicked into the long grass.
Finally, the Bill proposes an extension to the definition of public authorities to include school academies and private contractors. When individual Members of Parliament draft legislation—albeit in this case ably supported by Maurice Frankel of the Campaign for Freedom of Information—the Government can often point to technical flaws in the Bill. However, this Bill highlights the need for a debate about what constitutes public authorities. It is clear in my mind that academies are public authorities. The total capital costs of building 200 academies will be around £5 billion. The 27 opened so far received revenue funding of between £2 million and nearly £9 million in 2005-06. They are funded overwhelmingly from public sources. They teach our children, employ teachers mainly trained in UK institutions and they are monitored by Ofsted: there can be no argument about whether they should be covered by freedom of information legislation; they must be.
The argument about private contractors doing work for public authorities is less clear cut. The Secretary of State does of course have the power to designate private contractors under section 5 of the Act, but has not chosen to do so. This Bill does not seek to include all private contractors working for a public authority within the scope of freedom of information legislation. The self-employed painter and decorator who does occasional painting and decorating jobs for the council should of course not be covered by FOI legislation. The definition in this Bill of a relevant contract—one whose value exceeds £1 million and extends for a period of more than 12 months—would ensure that he was not covered by it.
However, what about Capita and the other huge firms to which local authorities and central Government outsource large chunks of their business? They provide services for some local authorities and Government Departments that, for other areas and Departments, the public authority provides. They are, in effect, quasi-public authorities. They must not be allowed to avoid the scrutiny provided by FOI legislation. They must be covered by the same rules.
I have set out today in this Bill three simple measures that would demonstrate that we in this House are serious about freedom of information legislation. The Bill would strengthen FOI legislation, not emasculate it, and I urge Members to support it.
Question put and agreed to.
Bill ordered to be brought in by Tom Brake, Norman Baker, Mr. Paul Burstow, Mr. Nick Clegg, Tim Farron, Lynne Featherstone, Mr. David Heath, Simon Hughes, Mr. Dan Rogerson, Mr. Richard Shepherd, Andrew Stunell and Mr. Phil Willis.
Freedom of Information (amendment) (no. 2)
Tom Brake accordingly presented a Bill to amend the Freedom of Information Act 2000; to remove the provisions permitting Ministers to overrule decisions of the Information Commissioner and Information Tribunal; to limit the time allowed for public authorities to respond to requests involving consideration of the public interest; to amend the definition of public authorities; and for connected purposes.: And the same was read the First time; and ordered to be read a Second time on Friday 15 June, and to be printed [Bill 121].
Orders of the Day
Serious Crime Bill [Lords]
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—