My Lords, before I do anything else, I must offer my abject apology. I was listening to my noble and learned friend, but I came downstairs to find that the debate had ended. I am deeply sorry to have kept the House waiting even for one second.

I beg to move that this Bill be now read a second time. This Bill is important and significant. It gives us a major opportunity to address a number of serious issues. In moving that the Serious Crime Bill be given a Second Reading, I want to emphasise the difficulties with which, as your Lordships will be aware, we deal every day. Teenage girls are taken from their homes in eastern Europe and trafficked into the UK for the purpose of forcing them into prostitution, while drugs such as heroin and crack cocaine make their way on to our streets, destroying lives and communities and causing harm that costs more than £15 billion a year. Criminals are living comfortably off the proceeds of all these crimes. These issues are what this Bill is about.

As my right honourable friend the Home Secretary has made clear, the Home Office is committed first and foremost to ensuring the safety and security of the citizens of the United Kingdom. We are bringing forward a legislative programme with this principle at its heart, and an essential part of that is the Bill now before noble Lords. Its measures will help law enforcement agencies to prevent and, we hope, reduce such harm, take away the profits made from the suffering of those trafficked for sex or addicted to drugs, and put a stop to the types of fraud that cost the taxpayers of this country billions of pounds.

The Bill results largely from a consultation on the Green Paper, New Powers Against Organised and Financial Crime, published last July. We received a broad range of responses, the majority of which were supportive of the policy ideas set out. We have listened to the comments made and I and my ministerial colleagues have met a range of stakeholders and interested parties—including, for example, the Information Commissioner, Liberty and the Law Society—to listen to their views and to ensure that the need to protect us all is balanced with appropriate safeguards.

Developing on the Green Paper, the Bill sets out four key areas where we felt that improvements could be made: the creation of a new civil order, to be targeted at those involved in serious crime and designed to prevent their involvement in serious crime in the future; taking forward the work undertaken by the Law Commission on the law in relation to encouraging or assisting crime; improving the prevention of fraud through the sharing of data across both the public and private sectors; and, finally, improving the current regime for recovering the proceeds of crime.

A key area contained in the Bill but which was not contained in the consultation paper is the provision to merge the Assets Recovery Agency with the Serious Organised Crime Agency. This is being done to maximise the skills and expertise of both agencies in going after the profits of criminals.

An additional area for which the Bill makes provision but which was not included in the Green Paper is an extension of the surveillance powers available to Her Majesty’s Revenue and Customs, which are currently available only for tackling serious crime relating to ex-Customs and Excise matters, to serious crime relating to ex-Inland Revenue matters as well. This is necessary to address emerging patterns of criminality targeting the direct taxation system. These proposals take further the new approach to tackling organised crime first outlined in the 2004 White Paper, One Step Ahead.

While the provisions in the Bill are targeted at different elements of serious criminality, they have common features. First, they reflect a commitment to reducing the harm caused by serious crime. Rather than focusing on particular outputs such as prosecutions or seizures, they focus on preventing crime wherever possible. Secondly, they reflect careful work with law enforcement practitioners, identifying the key gaps in the current system and giving them the tools that they need for the job while ensuring that these tools are truly necessary and, most important, proportionate.

I will take your Lordships through these measures a little more comprehensively and provide some clarification in certain areas that seem initially to have caused some confusion and mistaken reporting in the media. I hope that your Lordships will feel content after these matters are explored more fully.

Part 1 of the Bill creates the serious crime prevention orders, the SCPOs. These are aimed at the prevention of the kinds of crimes that I mentioned at the outset. The people who commit crimes of this nature are often very skilled, very intelligent and very adept at adapting their processes. In short, they are not stupid and will try to distance themselves from criminality while still raking in the profits. They will often coerce those weaker than themselves into taking risks and they will constantly seek to find new ways of making money while avoiding detection by law enforcement agencies.

The Government must be similarly flexible and innovative in providing new law enforcement tools that will help to prevent this. As a result, we are proposing the creation of the orders that I am about to explore with your Lordships. These will add another string to the bow of law enforcement agencies which is flexible enough to prevent those involved in serious crime from carrying on, but which can only be granted by the courts where it is reasonable and proportionate to do so.

Perhaps I can reassure your Lordships on a few elements of the orders. First, these orders will be able to be applied for only by the three applicant authorities set out in the Bill: the Director of Public Prosecutions, including the Director of Public Prosecutions for Northern Ireland; the director of the Serious Fraud Office; and the director of Revenue and Customs prosecutions. This reflects the fact that the orders will be sought only where appropriate and in a targeted way as a result of specific investigations by law enforcement agencies into serious criminal activity.

I make it clear that serious crime prevention orders are not simply a soft alternative to prosecution. The Government are committed to ensuring that those who commit serious crimes are caught, brought to justice and punished appropriately. It is highly significant that the applicant authorities also have the responsibility for deciding whether it would be appropriate in a particular circumstance to bring a prosecution. The principle behind the orders, though, is that there will be times when it is possible, through the imposition of reasonable restrictions or obligations, to prevent those involved in serious crime from committing further acts that will bring harm to others. Prevention is a key issue that we seek to address in these provisions.

Secondly, I know that in the press coverage of the publication of the Bill there has been much mistaken comment about these orders being a way for law enforcement agencies to get around troublesome prosecutions. I assure the House that that is not the intention. When deciding whether to make an order, the courts will apply a two-part test. First, there is a backward-looking element, in that it relates to a person’s previous behaviour. The court will have to be satisfied that a person has been involved in serious crime, which will be the case if they have committed a serious offence, facilitated the commission of a serious offence by someone else or acted in a way that was likely to facilitate the commission of a serious offence, either by themselves or someone else.

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. 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 to the criminal standard of “beyond reasonable doubt”.

My Lords, will the Minister give us an undertaking that that will appear in the Bill?

My Lords, the noble Lord knows as well as I do that the reason it will not have to appear in the Bill is that the jurisprudence, which has certainly been well established for as long as I have been at the Bar and, I would hazard a guess, even as long as he has, tends to emphasise that point. The sliding scale has been with us for a very long time. The most recent authorities, however, particularly in relation to these issues, have driven that point home. The court has said on a number of occasions that that is the case.

These orders are not about punishing people without proof; they are not punitive. Rather, they are proposed to be preventive. They are a means of prevention based on our most senior judiciary, sitting in the High Court, being satisfied of the person’s involvement, or likely involvement, in serious crime. If an order is to be imposed by the Crown Court, it must be based on a criminal conviction.

The second part of the test is forward-looking, in that it provides that the court must have reasonable grounds to believe that the terms of the order will prevent, restrict or disrupt involvement by the subject of the order in serious crime. Not only does that test have to be met before an order will be granted, but, in deciding what these terms should be, the court, as a public authority for the purposes of the Human Rights Act, will have to ensure that any term of an order is compatible with the convention rights.

Thirdly, the Bill provides for numerous safeguards, most notably in relation to third parties who might be affected by the terms of the order. We have included comprehensive rights to make representations at proceedings when the granting of an order is considered, rights to apply for the variation or discharge of an order at a later stage, and rights to appeal. I believe that the provisions of the Bill are such that third parties will not be unreasonably affected by the terms of an order.

Finally, we have taken much care to ensure that, where an order is sought against an organisation such as a company, the impact on legitimate business will be minimal. In the same way as for all other third parties, the applicant authority will have to bring the potential impact on third parties, such as business customers, to the court’s attention when they are considering the imposition of an order. I believe that these orders will provide a balanced approach to helping to deal with the very real harm caused by serious criminals to the communities in which we live. I look forward to discussing them in detail in Committee.

The second main policy plank of the Bill is concerned with plugging a gap in the criminal law identified by the Law Commission, whereby a person currently incurs no criminal liability if he assists another to commit an offence that is not in fact committed, whereas he will incur liability if he gives encouragement in this situation. That is especially important with regard to serious crime, where we might be talking about supplying a car for the purpose of an aborted armed robbery, but it also applies across the whole of the criminal law.

In implementing the very sensible changes suggested by the Law Commission, we will ensure that those who assist or encourage offences are held accountable for their actions regardless of whether an offence is actually committed or attempted. The offences are: encouraging or assisting an offence with intent; encouraging or assisting an offence, believing that an offence will happen; and encouraging or assisting a number of offences, believing that one or more offences will happen but without being sure as to which.

In drafting these offences, we have taken into consideration the responses that we received to the consultation paper and the continued engagement with stakeholders. As a result, we are proposing some limited changes to the Law Commission’s recommendations. The Law Commission has confirmed that it is content with these changes and I hope that the provisions will meet with your Lordships’ approval. I take this opportunity to thank the Law Commission for the hard work that it has undertaken in this regard; the work has been very important and we are very grateful for it. The provisions are complex and technical in places, and I look forward to exploring them more fully with your Lordships in Committee when we examine the detail of the Bill.

The third key area of the Bill is data sharing for the purpose of preventing fraud. If you were to ask the vast majority of the public whether that should be done, they would be shocked to discover that it was not already being done. This is why the overwhelming majority of the responses that we received to the consultation process for these proposals were supportive.

There is something abhorrent about criminals seeking to enrich themselves on benefits and services that are intended for the more vulnerable members of our society—for example, those who claim housing benefits despite owning their own properties, sometimes several properties. It is the Government’s responsibility to provide the means for public sector organisations to protect themselves and the taxpayer against this activity. Our society has become increasingly dependent on the use of personal data for all our day-to-day personal and business transactions, including accessing services provided by the public sector, such as benefits or passports. However, the very existence of these many different systems across both the public and private sectors offers opportunities that criminals have not been slow to exploit. These are the opportunities that the new data-sharing measures are intended to spoil. This will offer savings to the private sector and the public purse.

I should like to reassure your Lordships of one fact, which I hope will provide the context for discussion of these clauses today and in Committee. Every aspect of the sharing of data that will come about as a result of this legislation will be done in accordance with the provisions of the Data Protection Act.

During development of this policy there has been a process of engagement, at official and ministerial level, between the Home Office and the Information Commissioner. As a result, the commissioner has indicated that he is content with the principles. I hope that your Lordships feel similarly able to support these provisions.

It is fairly easy to see this type of fraud as “victimless”, but that is far from the truth. The Home Office commissioned research by National Economic Research Associates; that research, which was published in 2000, estimated the cost of fraud in 1998 at up to £14 billion. This cost means that less money is available in the public sector for those who legitimately access public services, and its cost to the private sector is passed on to the UK customer. The frauds that these criminals commit may also be used to fund other serious crimes.

The provisions of this Bill will enable the public sector to share information with the private sector, and vice versa. It offers the potential to help to identify individuals intent on defrauding the taxpayer by accessing benefits and services to which they are not entitled, and to prevent those applications from being granted where they should not be. This is not a broad gateway that allows any sharing of government information; rather, it is a narrow and targeted provision to prevent fraud.

There are two distinct parts to what we are trying to do. First, we are talking about data sharing to enable public bodies to share information with the private sector through a specified anti-fraud organisation. Of course, no decisions have yet been made on which organisation or organisations should be so specified, but CIFAS, the UK’s Fraud Prevention Service, which is a non-profit-making organisation, provides a good example of the sort of body that the Government have in mind. The Bill provides a gateway for public authorities to join such a body if they wish. There will be no compulsion on them to take advantage of the gateway, but it will be there if they wish to use it. Such a mechanism will enable those bodies to risk-assess applicants for services on the basis of this information exchange. It is difficult to estimate the savings that may result for the public sector in taking part in a CIFAS-type arrangement, but they could be significant. The current members, of whom there are about 250, estimate that they have avoided losses of about £790 million in 2005. Pilot studies with some potential public sector members suggest that they could save between £137 million and £273 million in a year.

The second element is to place the National Fraud Initiative on a statutory footing. This is a biennial data-matching exercise, which is already run by the Audit Commission as part of its auditing function and has already demonstrated its success. For example, in 2004-05, the National Fraud Initiative identified 905 housing benefit overpayments involving students and led to 396 successful prosecutions for housing benefit fraud. The initiative is already well established and operates to a code of practice, on which the Information Commissioner has been consulted, and that will continue to be the case.

The data-sharing provisions in the Bill are, as I said, very much about providing the mechanisms. They do not go to the nature of the data sharing itself. That is for later, at the implementation stage. But at that stage, working with the Information Commissioner, we will be seeking to ensure that the arrangements are transparent and command public confidence, are proportionate and are subject to periodic review. Importantly, we will ensure that the provisions are used to target suspected fraudsters rather than simply those who are potential fraudsters. These are no more than elements of existing good data-sharing practice. I assure the House, too, that the Government intend to continue to adhere to them in promoting data sharing for the purposes of the prevention and detection of fraud. These two proposals on data sharing provide the means that the Government believe will, if enacted, have a real impact in preventing and detecting fraud in the public sector. I commend them to your Lordships.

In recent years, we have made significant progress in recovering the proceeds of crime. The total amounts recovered have doubled since the Proceeds of Crime Act 2002 came into force to just under £100 million in 2005-06. If we meet this year’s target of £125 million, as we are on course to do, overall performance will have increased fivefold over the past five years. But we want to push on. We have therefore set a new target to double the current figure to £250 million per year by 2009-10. Not only is it right that we should not allow criminals to profit from the harm that they cause, but we must continue this success to prevent these proceeds from being a draw into serious crime and effectively a source of investment funding future serious criminal activity. As a result, we have reviewed the way in which criminal assets are recovered and have brought forward in this Bill proposals that will enable us to improve performance further.

In order to bring work on the recovery of assets closer to the intelligence-gathering and investigative functions carried out by the Serious Organised Crime Agency, we have decided to merge the Assets Recovery Agency with SOCA. This will allow for easier sharing of information and intelligence and will maximise the skills and expertise of both agencies. The ARA has contributed to the total amounts recovered in recent years and has made a significant impact in disrupting serious criminal groups and freezing their assets. The Government believe, however, that more can be achieved, and the merger should enable further improvement.

The ARA’s powers to bring proceedings in the High Court for the civil recovery of the proceeds of crime, under Part 5 of the Proceeds of Crime Act 2002, will be shared between SOCA and the main prosecuting bodies. The ARA’s powers to carry out certain taxation functions under Part 6 of the Proceeds of Crime Act will transfer to SOCA. The agency’s responsibilities for the training and accreditation of financial investigators will transfer to the National Policing Improvement Agency.

There are further measures in the Bill designed to drive up our overall performance in this area. Three specific powers, which are already available to the police and Revenue and Customs officers under the Proceeds of Crime Act, will be extended to certain accredited financial investigators who operate under the Act. These are powers to: seize property to prevent its removal from the United Kingdom; seize and seek the forfeiture of suspect cash; and execute search warrants. The safeguards that currently apply when police and HMRC officers use the search and seizure powers under the POCA will similarly apply to accredited financial investigators. We are also creating a new type of investigation under the Proceeds of Crime Act; namely, a detained cash investigation. This new power, requested by law enforcement agencies, will help them in the preparation of a cash forfeiture case to go before the courts.

The final part of the Bill reflects the increasing evidence of serious criminals attacking ex-Inland Revenue systems, now falling within Her Majesty’s Revenue and Customs, not just to evade paying tax on commercial profits but fraudulently to extract money from the Exchequer. The Bill makes certain surveillance powers that HMRC currently has only for serious crime in relation to ex-Customs and Excise matters also available to it for serious crime in relation to ex-Inland Revenue matters.

This extension will allow HMRC more effectively to investigate and bring to justice those serious criminals engaged in, for example, organised tax credit fraud, involving identity theft and using false identities to make thousands of fraudulent tax credit claims; identity theft occurring in relation to self-assessment repayment frauds and organised attacks against this system by the internet filing of false returns; serious criminal gangs attempting to obtain large self-assessment repayments by using multiple claims; or suspects fleeing the jurisdiction. In the most serious cases, use of RIPA interception powers could be used to alert HMRC, providing early and invaluable intelligence and help to identify a suspect who is planning to flee the jurisdiction where the serious criminal activity relates to ex-Revenue matters.

HMRC consulted on this change in March 2006. The majority of those who responded regarding the extension of these powers were in favour of what is proposed, provided that the powers can be used only in criminal investigations into serious tax crime and continue to be subject to the same safeguards and controls. I confirm that the safeguards and controls will be unaltered and that the powers will be used only for criminal investigations into serious tax crime. The use of the powers is also overseen by the independent Interception of Communications Commissioner and the Office of Surveillance Commissioners. None of that will change. These powers are not available for HMRC to use in exercising its routine civil compliance work—for example, tax inspectors checking that tax returns are accurate. Only the specialist teams that undertake investigations into serious tax crime may apply to use these powers.

In conclusion, these provisions comprise a package that I hope your Lordships will agree will bring about real and appreciable improvements in the way in which we identify, investigate, prevent and strip the profits from serious crime. They build on a solid foundation of existing policy and on significant levels of support shown during the consultation process and from key stakeholders, such as the Information Commissioner.

We are better able now to address these issues and I invite your Lordships to endorse the proposals, not least because they have been carefully framed and widely consulted on. We believe that the provisions in the Bill will potentially save us billions of pounds in the long term and represent a sensible way forward. I commend the Bill to the House.

Moved, That the Bill be now read a second time.—(Baroness Scotland of Asthal.)

My Lords, the Government clearly have a duty to protect the British public from those who do their utmost to encourage serious organised crime and to profit from it, while taking great care to stay at arm’s length from the crimes themselves. They are a danger to all of us, but their hands never appear dirty in public. I recognise that it is very difficult to take measures to protect the public from such people, but it is vital that we do so. However, those methods must be both proportionate and effective without undermining our system of law and justice. If the new system does not work, it is the “Mr Big”s who will have the last laugh—again.

Today we have before us the supreme irony of a Bill that creates a cross between ASBOs and control orders, at the very time when the effectiveness of both measures has come in for so much criticism. Control orders have been dogged with problems. Just last month a third terrorist suspect went on the run. That must raise serious doubts about the effectiveness of introducing a similar scheme for gangsters; and if up to 55 per cent of tearaways breach ASBOs, what makes the Home Secretary think that hardened, calculating criminals of the most dangerous kind will pay attention to one?

We are sceptical about whether measures such as the new serious crime prevention orders are the most effective way of combating serious crime. Less than two years after the Serious Organised Crime and Police Act 2005 was enacted, the Government would be well advised to answer our call to improve criminal evidence rules first; for example, by allowing evidence obtained through the use of phone tapping and other electronic surveillance to be admissible in court, so that more serious criminals can be charged and convicted. After all, the best weapon against serious criminals is to track them down, charge them and prosecute them.

However, the Home Office appears to be in denial, or, according to the Home Secretary last month, in wallpaper-stripping mode. He seems to see himself as Bob the Builder. In reality, he looks as though he is auditioning for the BBC’s “DIY SOS”. However, we must consider the Bill before us seriously. Of course it is right to do everything within reason to prosecute and punish those guilty of serious crime.

However, Part 1 gives sweeping powers to judges to impose super-ASBOs—which, I understand, the Home Office is colloquially calling “GASBOS”—on the basis of the civil burden of proof, the balance of probabilities. We shall need to examine the potential consequences of that. The Minister sought to reassure us today by saying that there would be a sliding scale of testing against the balance of probabilities, but in court and in the statute one wants clarity.

How easy will it be to apply for an order to be made? The Explanatory Notes state that there will be tight control over the process by the DPP, but paragraph (2)(1) of Schedule 2 does not seem to provide that. We shall consider whether that needs tightening up, because, despite what the noble Baroness said, there remains widespread concern that it could prove too tempting for the police to go for an order instead of bringing a prosecution in the criminal court, where perhaps they may think they have an underwhelming case. The noble Baroness said that that was not the intent. We will have to ensure in our scrutiny of the Bill that her assurance becomes a reality.

We shall need to examine whether there is sufficient protection in the Bill for those engaged in legitimate business, whether the prohibitions proposed by the orders are likely to be appropriate and effective, and what the costs may be.

I am puzzled by the Government’s definition of “serious crime” in Schedule 1. Why have they listed fishing for salmon with a prohibited instrument as a serious crime but left off something as serious as armed robbery? What is the rationale for that? Is it right that the list of serious crimes can be extended any day in court by a judge? Surely transparency and legal certainty are best served by extending the list of serious crimes by statutory instrument following parliamentary scrutiny.

Super-ASBOs have grabbed the headlines, such as there have been in the press, but we must not ignore the important provisions of Parts 2 and 3 in our scrutiny of the Bill. As the noble Baroness said, Part 2 is based firmly and squarely on work done by the Law Commission. I join her in commending the commission, as I always do, on its excellent work on these matters. In Committee, we should simply like to examine how the Government’s proposals diverge from the original Law Commission proposals so that the Government have the opportunity to put on the record how their thinking developed. Certainly, at first blush it appeared from the Bill that the Government had taken the more appropriate and reasonable of those proposals and that they were leaving until a later date those that might need more testing in pilot schemes or more research. However, we will need to look at that in some detail.

I turn to Part 3. Of course it is important that we should make the best use of modern data systems to detect and prevent fraud. As the Minister said, it is what the public expect and have a right to expect, but the methods adopted must be not only effective but proportionate. The Audit Commission’s National Fraud Initiative has been a valuable exercise, but in Part 3 we see sweeping changes to our data protection laws that will need very careful consideration. Extensive powers are being seized by the Home Secretary that could allow, for the first time, widespread data sharing between the public and private sectors in the name of tackling fraud. It will 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 will now be that information will normally be shared in the public sector provided that it is in the public interest.

The Bill clears the way for data-matching exercises to be carried out on a large scale, even though a Home Office consultation paper last year acknowledged that many public bodies feared that such operations could be seen as fishing expeditions, which should be justified only on a crime-by-crime basis. But, of course, the Bill could open the way for operations under which software was used to search several databases to identify suspicious patterns of activity that simply could not be spotted when the data were seen individually.

Today the Minister assures us that this is intended to be a narrow gateway, very carefully policed and underwritten by guarantees. We shall need to examine that assurance to see whether it is borne out by the reality of the drafting. For example, I am concerned about new Section 32G under Schedule 6, which gives the Home Secretary the power to add to the purposes for which data-matching exercises can be carried out. Presumably, in the future that could include sensitive personal data, so I should like to look at that fairly closely in Committee.

The Explanatory Notes make it clear that, in the longer term, the National Fraud Initiative, in which 1,300 public bodies take part, will be extended to include information on central government systems, such as passports and driving licences. It has been suggested by some respondents on the Bill that it would not be the right way forward if that power were used to pave the way for a national identity register. It would certainly appear to contravene the assurances given to this House during the passage of the Identity Cards Bill.

We need to look carefully at Part 3, but of course I understand that we will need to ensure that the appropriate codes of practice and guidelines are in place. The noble Baroness said today, “Don’t worry. The Data Protection Act covers everything”, but the advice I have been given is that, although some of the new measures must comply with existing data protection codes of practice, some of the new powers are not subject to specific codes or guidelines, and I shall need to look at that. The noble Baroness shakes her head but we will need clarification on that point in Committee.

The Minister talked about the part of the Bill whereby the Assets Recovery Agency has its demise. It has now merged with the Serious Organised Crime Agency, which could be a measure of common sense. However, it is important that the costs of recovering assets, together with the amount recovered, are still published. It is a matter of public knowledge; we need it in the public domain. We must monitor the effectiveness of the process. The ARA has gone after small, more readily accessible amounts; at least its procedures were relatively transparent. What will be the impact of the transfer to SOCA, whose approach one might call quasi-secret? What accountability will there be to Parliament? SOCA has repeatedly made it clear that it quite properly, according to its rationale, concentrates on level 3 crime: organised gangs operating nationally and across borders.

There are fears that the merger could mean a narrowing of focus. My noble friend Lord Glentoran will table an amendment in Committee to debate the particular and significant concerns raised with us by the Police Service of Northern Ireland; I understand that it has approached other noble Lords on the same matter. It is worried that there will be a reduction in the focus on Northern Ireland, with a risk, for example, that the intimidation of neighbourhoods and persistence of protection rackets in sectors of the local economy will simply not appear high enough on any scale of SOCA priorities set in London. I am the first to recognise that, in general, SOCA’s more intelligence-led approach could offer a solid fit with asset recovery. SOCA has made it clear that it wants the hunt for criminal profits to be central to how it operates. That can only be good news. What we need from this merger is synergy, not a culture clash.

In conclusion, it is obvious that serious organised crime causes human misery and massive costs to society. There is nothing between all of us on that. The principles to be debated in this Bill are significant. Do they take us too far in the development of preventative orders and data sharing? Are they necessary in the fight against serious organised crime or are there other, more effective, measures that we should be adopting? All those matters deserve cautious and careful consideration, and we look forward to giving them that attention in what I am sure will be a rather intriguing Committee.

My Lords, back in 1760, Sir Francis Bernard, the governor of Massachusetts—then a British colony—adopted the practice of issuing writs of assistance. Their effect was that any place could be searched at the whim of the holder, and the searchers were not responsible for any damage they caused. The constant use of these writs of assistance proved such a burden to the colonists that they seriously considered their relationship with Britain. After one or two skirmishes around Boston, including the Boston Tea Party, the American revolutionary war broke out and America consequently became independent.

Following the defeat of the British forces at Yorktown, Lord North, the Prime Minister responsible for this fiasco, was defeated in a vote of confidence in Parliament and resigned in March 1782. He is famously said to have cried, “Oh God, it’s all over, it’s all over”; the parallels with the present are obvious. As a result of that, the fourth amendment to the American constitution, a significant part of their Bill of Rights, outlawed general search warrants and specified that judicially sanctioned search and arrest warrants must be supported by probable cause and be limited in scope, according to specific information provided by a person, usually a peace officer, who has sworn by it and is therefore accountable for it to the issuing court.

So what an excellent wheeze Part 3 of this atrocious Bill is. It introduces into our law a high-tech version of the writ of assistance. If the Bill goes through, the Audit Commission, whose job we thought was to concern itself with the efficient and effective delivery of public services, will appear in a new guise as spymaster-general. Nothing could be more appropriate for this Government, with their authoritarian bent. New powers are to be given to the Audit Commission to obtain,

“such data … as the Commission … may reasonably require for the purpose of conducting data matching exercises”.

That is data from public bodies subject to audits, such as police forces, emergency services, local authorities, NHS trusts and so on; and from any other bodies that voluntarily supply databases at the commission’s request.

Data matching—the focus of Part 3—is otherwise known as data mining. It is a process whereby large quantities of information about many individuals are gathered from many sources and are mined by mass cross-referencing in order to throw up patterns of behaviour. It is the sort of thing that the supermarket card is designed to do to demonstrate to the management whether a customer buys buy tins of salmon or jars of Marmite. The patterns of behaviour thrown up by the data matching in Part 3 may or may not be meaningful; it is all a matter of chance. Depending on how they are interpreted, the Audit Commission will be able to point the finger at what is deemed to be a suspicious constellation of characteristics or behaviours in an individual. Instead of a system in which a person is suspected of a crime and is then investigated by the police, a trawl using the latest computer techniques will throw up names and those people will be investigated because of their characteristics or behaviours. Suddenly, we have grounds for a serious crime prevention order under Part 1.

That is why I call it a modern-day writ of assistance. It is not necessary for there to be evidence of wrongdoing, a probable cause or a warrant based on reasonable suspicion, nor is there the accountability of having to go to a magistrate to get a warrant. It is no wonder that in her letter yesterday to the Constitution Committee the noble Baroness, Lady Scotland, said that the orders are not aimed at the one-off criminal but at those who conduct their lives and affairs in a criminal way; in other words, who may be thrown up by data matching or data mining.

This is the Serious Crime Bill, but when it comes to data sharing—the other limb of Part 3—the illustrations that the noble Baroness gave related to benefit fraud, housing benefit and matters of that sort. The Data Protection Act is given lip service in the Bill and is then circumvented. The Bill provides that a specified anti-fraud organisation, which is any unincorporated association, body corporate or other person which has as one of its purposes the enabling or facilitating of any sharing of information to prevent fraud—and we were told there are 250 of them—may require a public authority, for the purposes of preventing fraud, to disclose information of any kind about an individual, including sensitive personal information, either to itself or to any other person in accordance with any arrangement it may chose to make. Confidentiality is over-ridden, the Data Protection Act is over-ridden, no general code is proposed to govern the arrangements and the circumstances in which the disclosure is to be made are not to be limited in any way. The Bill proposes that databases can be exchanged and data can freely be thrown around without the safeguards of the Data Protection Act or any regard for confidentiality.

It is said to be a narrow gateway to obtain the information, but the Bill contains powers to extend data matching to other bodies and for purposes beyond those related to crime. Under the Bill, the Home Secretary can expand the scope of the provisions even further. For example, he can do so to assist in the recovery of debts owed to public bodies, such as congestion charges. He can have access to data obtained by public authorities for those purposes. The Home Secretary can add to the list of bodies that may be required to hand over information to the Audit Commission. There is nothing in the Bill to protect the interests of individuals or classes of individuals. I know that we shall hear about the Audit Commission’s code of practice that will be put forward, but that is not to be subject to parliamentary approval. Unlike codes such as PACE and so on, there will be no parliamentary approval for the Audit Commission’s code of practice in carrying out these things.

I turn to assets recovery. We know that the Assets Recovery Agency has been a complete failure. It has recovered far less than its cost and is to be abolished. We learnt in a Channel 4 programme the other day that the people employed by SOCA sit there twiddling their thumbs. They have nothing to do. The synergy to which the noble Baroness referred is the synergy of two failed organisations put together. The noble Baroness then has the chutzpah to say that we will save billions of pounds by this means. It is ridiculous. And I have not said anything about Part 1 yet.

The Select Committee on the Constitution in its report earlier this week said on this Bill:

“We draw to the attention of the House the fact that the far-reaching restrictions of a SCPO may be placed on a person against whom no criminal proceedings have been instituted or who has been convicted of no criminal offence. Moreover, the restrictions which can be imposed are not limited to conduct forming part of the particular type of crime which has been proved, by civil standards, against the defendant. ASBOs and other types of control order … generally deal with small-scale anti-social behaviour and have little impact on third parties. SCPOs will have a much wider reach”.

It concluded in this way:

“A broad question for the House”—

it is for us—

“is whether the use of civil orders in an attempt to prevent serious criminal activity is a step too far in the development of preventative orders. Whether or not the trend towards greater use of preventative civil orders is constitutionally legitimate (a matter on which we express doubt), we take the view that SCPOs represent an incursion into the liberty of the subject and constitute a form of punishment that cannot be justified in the absence of a criminal conviction”.

That is what the cross-party Constitution Committee of this House thought of these proposals.

I have read the response of the noble Baroness, Lady Scotland, which I received today. She claims that a recent report in December 2007 by the National Audit Office suggests that ASBOs were highly effective as part of a tiered approach to tackling the overall problem of anti-social behaviour within an area. I do not know where the National Audit Office gets its statistics, since the Home Office does not publish them in full and itself complains that there is under-reporting of ASBOs.

The British Crime Survey found that 17 per cent of people canvassed perceived a high level of disorder in their local area—the same as the previous year—and that the proportion perceiving young people being drunk had increased. It is constant anti-social behaviour orders: they have been going since 1999 and have shown no marked impact. Meanwhile, according to such Home Office statistics as do exist, 9,253 ASBOs were issued to December 2005, of which 47 per cent were breached and 55 per cent of those breaches resulted in custody. So ASBOs are not the highly effective success that the noble Baroness has claimed. They have not had any impact; all they have done is to have people sent to prison for matters which were not offences.

That is the template for the serious crime prevention orders that we are now being asked to accept. If you have a case, you should charge, as the noble Baroness, Lady Anelay, said. Bail conditions can be imposed just as restrictive as anything proposed under the orders. Where prosecution is too troublesome, trial too long or where you have to rely on rumour, gossip or lifestyle as thrown up by the data-mining provisions to which I referred, go for what the Minister calls the new tool, the SCPO. It will be a greater failure than ASBOs.

The imposition of such an order is based on a determination that an individual has done something wrong. It does not have to be proved, except by a civil balance of probabilities. The orders will have an effect on reputation, on people's businesses and on their home lives. The restrictions are deliberately vague. Only examples of restrictions are given in the Bill, so that the order can be flexible. Clause 5(7) states that the restrictions do not need to be stated in the order but are at the discretion of law-enforcement officers, so the police can make their own restrictions. It is not like an ASBO, where the restrictions are told in court to an individual. The restrictions can be imposed by law-enforcement officers themselves.

Are they proportionate? Can they be challenged? There is no provision for review. All that is relied on is the fact that the orders can, if there is no conviction, be made only by a High Court judge. There is a huge amount of work for High Court judges. Only today, I received a copy of a letter from the Lord Chief Justice about the Tribunals, Courts and Enforcement Bill, saying that he did not have enough High Court judges to go around. If the Government proposals go through, if they have their way, the streets will be full of people in red dressing gowns with wigs on running around granting the orders like confetti.

Everyone has a right to liberty and to security of the person under Article 5 of the European Convention on Human Rights, which the Government were good enough to make part of the law of England and Wales and of Scotland. Restrictions on liberty can be justified only by due process of law. Whatever credentials the party which is now in government had for civil liberties have long been lost. Oh God, Mr Blair, it’s all over, it’s all over.

My Lords, if I may, I shall confine my remarks to Part 1 and not try to cover the other parts. I want to cover Part 1 because it is the part which concerns me most closely. When I first read it, I had not then seen the briefing notes provided by Liberty or JUSTICE and I had not read the very stringent criticisms contained in the report of the Select Committee on the Constitution. I must say that on reading Part 1, I could scarcely believe my eyes.

The Government seem to be making exactly the same mistakes as they made when they forced the Prevention of Terrorism Act through Parliament in spring 2005. 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.

That, I think, is the effect of Clauses 1, 2 and 4 in Part 1. Those provisions are quite extraordinary. Equally extraordinary, indeed astonishing, is the range of restrictions that may be imposed on such a person. There are restrictions on where he can live, where he can go, who he can talk to, and what he can do for a living. If that were not enough, the court can authorise further restrictions to be thought up by the police, as the noble Lord, Lord Thomas, has already observed. When I read provisions such as those, I find it hard to believe that we are living in England.

My immediate reactions on reading Part 1 are thus exactly the same as the more mature reflections of JUSTICE, of Liberty, and of the Constitution Committee. I hope that we will hear more from the noble Viscount later, who is a member of the committee, on what its reasoning was. Rather than concentrate on the detailed provisions, which will come in for a great deal of criticism in Committee, I shall concentrate on something broader; the whole approach adopted by the Government in Part 1.

I was one of those who opposed control orders. I remember looking then for a precedent for the use of the civil justice system to impose what amount to criminal sanctions. I could find only two: non-molestation orders in domestic proceedings, and the anti-social behaviour orders. The industry of the Constitution Committee has identified some other instances, but surely we would all agree that control orders were in a completely different league from anything that had gone before. They were a way of depriving someone of his liberty without what Americans call due process of law. That is exactly what the Court of Appeal subsequently decided in the Secretary of State v JJ, where it quashed the standard form of control order on the ground that it was in plain breach of Article 5 of the convention. Mr Justice Sullivan held that it was not even a borderline case, and his views were upheld in the Court of Appeal. One would have thought, perhaps optimistically, that the Government would have learnt something from the reception which the Prevention of Terrorism Act has subsequently received.

When that Act was being forced through Parliament in 2005, it got through only because we were given a promise, which many Members of the House will remember, that we would come back to control orders at the start of the Session in 2006. That promise has not been kept, and we are still waiting. Instead of justification for the control orders then imposed, we have the regrettable procedure extended from terrorism to serious crime. It is time we protested against this method of dealing with crime. The Government say that the restrictions to be imposed under the present Act are justified because they are preventive, not punitive. However, restrictions do not cease to be punitive just because they are called preventive. I regarded, and still regard, control orders as punitive and an abuse of the civil process. I say the same about the prevention orders proposed in the Bill. As a result, I agree with every word of the last paragraph of the Constitution Committee’s report, which has been read by the noble Lord, Lord Thomas.

I have asked myself what sort of people these provisions are directed at. I had thought that they might be directed at people who organise serious crime but take care to remain in the background. The noble Baroness, Lady Scotland, said something that led me to believe that that might be the case. I suppose they could be said to “facilitate” crime, although it is perhaps an odd word to use in the circumstances. I do not doubt that such people exist, but surely they ought to be prosecuted under the ordinary law of conspiracy. We have seen how that can succeed in the Abu Hamza case and in two or three others since then. What we do not want is further legislation.

It is said that there may not be enough evidence to convict people of conspiracy. If that is so, they ought not to be subjected to quasi criminal sanctions. Before we decide whether there is enough evidence in such cases, please let us look again at the interception of communications, mentioned by the noble Baroness, Lady Anelay. Since we last debated that subject, JUSTICE has published a brilliant report on it, entitled Intercept Evidence: Lifting the Ban. It deals with all the arguments on both sides and it reaches a clear conclusion. Surely it is time that we, too, should take the plunge in this matter and bring ourselves into line with every civilised country by allowing this evidence to be admitted.

I said I thought that the purpose was to catch those who organise serious crime, but looking at the Home Office document, New Powers Against Organised and Financial Crime, I wonder whether that is true. It seems that the Home Office is more concerned with the small fry; with those on the fringes of serious crime; with the bit players. Let me read two sentences from the report at paragraph 3.2. It states:

“But in the case of organised crime investigations, there may be significant numbers of individuals at the fringes who cannot be pursued in the main trial, and for whom”—

and this is important—

“a separate trial is not thought worthwhile. Such individuals’ role might have been marginal and not warrant a prosecution”.

A little later it states:

“A preventative order disrupting future criminal activity by these currently minor players could play an important role in preventing them taking over the organisation in the leaders’ absence”.

I find those remarkable sentiments. If such people on the fringes are thought to have played a role in the offence, they should be prosecuted however inconvenient it might be to the prosecution service.

People on the fringes of crime who are thought to have been involved are entitled to the verdict of a jury one way or another. What is not tolerable is for that question of fact—because it is a question of fact—to be decided by a judge. It is not what judges are for. In criminal cases and quasi criminal cases, it is the jury which decides disputed issues of fact and not the judge.

My Lords, there is no doubt that serious and organised crime has a devastating effect on many of our communities, not only in our cities but in our countryside, too. There is also no doubt that serious and organised crime has a devastating effect on many of our individual citizens and societal values as well as on our nation's economy. Drug trafficking, crimes of a financial nature and people trafficking—all relatively newer crimes—create misery, fear, and trepidation not only among those who are directly affected, which is bad enough, but among a wider group of law-abiding citizens who witness the effects of such atrocities.

Too many criminals believe they cannot be touched by the law as currently written. Increasingly, personal identities are stolen and the lives of the victims are opened up to worry, frustration and disruption. Hard drugs are smuggled into our country and sold on to addicts whose lives are ruined by their effects, as are the lives of their families. The vulnerable of many nations, who often believe they will be improving their lot in life, seek assistance from hardened crooks who use them as prostitutes and virtual slaves, trafficking them across borders without mercy. Those are among the crimes that have instigated this Bill, which, unlike the two previous speakers, I support.

As the Minister pointed out, the Bill introduces new powers to tackle serious crime. It outlines a civil order that places conditions on both individuals and organisations to prevent the serious crime which they plan. It allows and encourages data sharing between public sector organisations and between public and private sectors. It introduces new offences aimed at those who encourage crime and those who assist crime, holding them responsible and accountable for their actions even if the crime is not actually committed. I support that. It also aims to combine the Serious Organised Crime Agency and the Assets Recovery Agency, bringing together the experience and expertise of those two important organisations.

The Serious Organised Crime Agency is a relatively new organisation which came into being on 1 April last year following a merging of the National Crime Squad, the National Criminal Intelligence Service, Her Majesty's Revenue and Customs and the Immigration Service. It is an intelligence-led agency with law enforcement powers and responsibility for the harm caused to communities and individuals by serious organised crime. Its workforce includes 1,100 former police officers from the National Crime Squad with their wealth of experience in the areas of investigation and prosecution of those engaged in serious and organised criminal activities. The Assets Recovery Agency was formed earlier, in 2003, under the Proceeds of Crime Act 2002. It undertakes civil and criminal recovery of money which is believed to be the proceeds of crime. It employs around 210 staff in London, Belfast and the regions. It seems sensible to combine these organisations, which currently have similar if occasionally not overlapping responsibilities.

The Bill should provide, through the serious crime prevention orders, a more flexible tool which can be used to prevent harm before it happens. It is a preventive measure. It should plug gaps in current legislation that allow those who support and assist crime to escape prosecution because they themselves do not commit it. It should encourage the sharing of data across the sectors, which also seems a sensible use of available valuable information. Additionally and importantly, it will place the national fraud initiative, a data-matching exercise run by the Audit Commission, on a statutory footing and expand its scope of operation. It seems to make sense for the national fraud initiative to be part of the proposed new organisation.

However, as with all new Bills that come before the House, there are queries that need to be raised. I look forward to the Minister’s answers to my queries and to those of other noble Lords. My first two queries concern the serious crime prevention orders, about which a number of noble Lords and organisations have expressed concern. I hope that my noble friend will be able to reassure the House that sufficient evidence will be found before such orders are issued and that the orders will therefore not be used as a measure of expediency to criminalise what is currently lawful behaviour. I hope that my noble friend can also assure the House that those who will be involved—prosecutors, members of the legal profession and the courts—will be given adequate training on the aims and objectives of the orders. Unless that happens, difficulties will occur, thus bringing the orders into disrepute before they even have a chance to work.

I turn to the sharing of data. I hope that my noble friend can also assure the House that the quality of the data to be shared will be of the highest standard. I can think of nothing worse than the sharing of poor-quality data. That would be not only useless but positively dangerous.

My final question concerns the staff who will inevitably be affected by the Bill’s proposals in both the short term and the long term. In any form of merger those employed by the organisations in question are naturally anxious about their future. Change can of course be for the good. However, as some of us who have lived through the merger of the organisation for which we worked can verify, changes can also be for the bad. I therefore want to ask the Minister about plans for the staff involved. Can my noble friend reassure me that they and the unions representing them will be kept fully informed of any proposed changes and will be fully consulted at an early stage of the process of change, particularly regarding protection of their current terms and conditions and any consideration of relocations or redundancies?

Like other noble Lords, I look forward to the Bill’s further stages and to our deliberations on it. I am sure that, if nothing else, they will be interesting.

My Lords, I shall concentrate on Part 3 of the Bill, the information-sharing provisions, and try to persuade my Front Bench and the Liberal Front Bench that this continual trying to stop the tide will just not work. They are in much the same position as Canute was without showing his wisdom.

There are so many good reasons to undertake data sharing. In any individual case you could persuade certainly this Government and I would imagine any Government that it is worth doing. If you are concerned about, for instance, the misuse of provision to support people when they claim that they are disabled, why not take data on people claiming disability benefit and match it, say, with camera data to see who is hopping and skipping round merrily in their town centres when they are supposed to be confined to a wheelchair? Why not look at the data from their credit cards or telephones to see whether they are ranging round the country when they are so disabled? Why not look at their medical and tax data to see what sort of income these people have and whether that is compatible with what they are saving? There is an argument in favour of this which it is possible for the Government to make when faced with substantial levels of fraud. They can say that fraud must be prevented and all that will happen is that people with suspicious patterns of data will be investigated. We will become much more effective at detecting fraud than we were before.

There is no good argument before the event for preventing these sorts of activities. The process of this Government and I would imagine of any following Government will be to do this more and more as capabilities improve, because it is the most effective way of preventing fraud. What we have to do, surely, is to ensure that what is being done is within what we find acceptable. The key to that is to know what is being done. So I want to persuade my Front Bench to support the provisions in the Bill—to make a start in this Bill, anyway—that say that where the provisions of Clauses 61 and onwards are used, such use must be registered with the Information Commissioner’s office and the commissioner must have the power to find out more about what is being done in a particular case and to make reports on it. In that way we will build up a real understanding of what is being done in our name and we can consider each individual case in relation to the request that was made, what has been done with the information, and any complaints made to the commissioner about it. We can then judge whether the powers are being used reasonably. There is always an argument for such powers, but there is always a suspicion that when these powers are given they will be used unreasonably.

There are many arguments for traffic wardens and for the enforcement of parking tickets. When, some 15 years ago, we passed legislation to decriminalise parking restrictions, it was done with the best of intentions. Now, some councils in this country set out to make the lives of their citizens a misery and to do so in order to generate revenue for themselves. The thing has gone beyond what is reasonable. If you do not have data to show what is going on, it is very difficult indeed to challenge that. The Government are making efforts now to row back on that by removing the incentives given to parking enforcement companies to issue ever greater numbers of tickets and by introducing measures to ensure that efforts are put into keeping the main roads clear, rather than into persecuting mums dropping off their children in the back streets. If we know what is going on, we can pick up on misuse. If misuse is going on at the level the noble Lord, Lord Thomas of Gresford, talked about, we can say, “This has gone too far and we need to do something about it”.

At the moment, the public want us to do this. They like the idea of fraud being prevented and do not see the danger to themselves. That is fine, and my noble friend on the Front Bench suggested that that understanding permeates her own team. This is not a Bill that will be easy to stand up to because the public do not share in such libertarian outrage as we have. I understand it when the noble and learned Lord, Lord Lloyd of Berwick, and others say that Part 1 of the Bill is a constitutional outrage, but it is going to be very difficult to stand up against it in the current climate. So the way to deal with our worries about data matching is to make sure that we have the information. If Part 1 is to go through, it must do so on the basis that we will record properly what serious crime prevention orders are—who they are given to, why they have been issued, what has been their effect—so that, unlike ASBOs, we know how they are being used and thus apply the proper level of scrutiny to the application of this extraordinary power.

I share all the reservations expressed by the Liberal Front Bench and the noble and learned Lord, Lord Lloyd, about the direction in which this Bill is taking us, but I do not see that it is stoppable. I do not see a power in the public will to go against it. But we must ensure that we know what is happening in our name. We must understand enough about this measure to ensure that if and when it goes too far we can put a quick stop to it.

I despair of this idea that we should prevent crime by penalising people. That is in the Mental Health Bill, which is going through the House at the moment. Where does this principle end? Do we stop people driving because we think they might drive too fast and kill someone? There is no logical limit to it. As the noble and learned Lord, Lord Lloyd, said, it seems able to reach out to some very small crimes. We know the police’s ability to use Acts that were drawn up to deal with big crimes to deal with little crimes. There is a reference in the Bill to an offence under the Officials Secret Act being one of the serious crimes. Will these orders be issued to investigative journalists to prevent them suborning civil servants to tell the truth about what is going on in their departments?

We are in difficult territory. I hope that we manage to make some amendments, but if we do not, whatever happens, this must not take place in secret. We must know what is happening so that when we grow disgusted by the results we can do something about it.

My Lords, I welcome the Minister back to her place on the Front Bench after what I understand was her recent bereavement. Certainly the government Front Bench is much the weaker without her.

I declare an interest as the chair of Justice, an organisation which has submitted a brief for the Second Reading. It is an important declaration because, although I do not speak on behalf of Justice, it is in large part because of my position in that organisation that I have decided to speak today.

What we have feared for a long time is now happening. Like the noble and learned Lord, Lord Lloyd of Berwick, I shall speak only on Part 1 of the Bill. The noble and learned Lord made an extraordinary speech, virtually every single word of which I agree with. We are now facing the fact that the Government’s use of civil penalties as a substitute for criminal convictions will rise to an unacceptable level under the Bill.

We started with ASBOs in the Crime and Disorder Act 1998. An argument can be made for ASBOs; in effect, they are similar to civil injunctions for harassment or nuisance, which victims could have obtained but they were deterred by costs and the possibility of revenge attacks by the person against whom they sought the injunction. As my noble friend Lord Thomas of Gresford said, in practice, ASBOs are not working nearly as well as originally expected.

The Government moved on from ASBOs to control orders under the Prevention of Terrorism Act 2005. We on these Benches accepted, with great reluctance, control orders in principle, although we did not accept the methods by which they are imposed. We accepted them because the aims of modern terrorists include the mass murder of ordinary people, and we see that as a unique case.

Part 1 pushes the boundaries of civil penalties further still—far too far. Under Clause 1, a serious crime prevention order can be made if the court is satisfied that,

“a person has been involved in serious crime”,

and the court has reasonable grounds to believe that the order will disrupt future involvement of that person in further serious crime. Does that mean that the person in question must have been previously convicted of a serious crime? Plainly not. Under Clause 2(1)(c), it is enough that the person,

“has conducted himself in a way that was likely to facilitate the commission by himself or another person of a serious offence in England and Wales (whether or not such an offence was committed)”.

The clause does not even require an intention to facilitate the crime.

The civil standard of proof applies for an SCPO. So what is a “serious crime”, specified in Schedule 1? As the noble Baroness, Lady Anelay, pointed out, armed robbery is not a specified serious offence, but Schedule 1 includes,

“fishing for salmon, trout or freshwater fish with prohibited implements”.

It also includes such desperate crimes as,

“making, importing or distributing an illicit recording”.

That is, of course, a dishonest way of making money but hardly a threat to the public; indeed, many members of the public are all too eager to benefit from that offence. There is also a catch-all provision that allows the court to treat any offence as serious if, in the circumstances of the case, it considers it,

“to be sufficiently serious to be treated for the purposes of the application or matter as if it were so specified”.

What can be restricted by the order? Under Clause 5, as the noble and learned Lord, Lord Lloyd of Berwick, pointed out, absolutely anything can be restricted. It includes, just as examples, the persons with whom the subject communicates or associates, the means by which he does so and the premises to which the subject has access. Most surprisingly of all, it includes the place where the subject may live. The subject may be forced into internal exile. It restricts travel, not just abroad but within the United Kingdom. The subject may be required to answer questions from law enforcement officers on any subject. Although that requirement is, in general, subject to the exclusion of answering questions that involve self-incrimination, the exclusion does not apply in one particular case: where officers are investigating a possible breach of an SCPO. The subject of that order must reply, even if the replies would incriminate him in the breach of the order. A breach carries a penalty of up to five years.

On top of all that, it is far from certain that SCPOs will be effective. As I mentioned, the civil standard of proof applies. I entirely accept, as the noble Baroness pointed out in her letter to the Constitution Committee, that the civil standard is flexible and not always just the simple balance of probabilities. That is clear, for example, from the decision of the Appellate Committee of your Lordships’ House in the McCann case of 2003. As the Law Society brief points out, in ASBO cases the courts now apply a standard close to the criminal standard. If the same principle applies to SCPOs, however, as clearly it will, their use will be limited to cases where a criminal prosecution would be likely to succeed and in those cases should be used. I know it is not the intention of the Government, but there is an inevitable danger that the prosecution, faced with a case where a criminal conviction is not absolutely certain, will seek a restrictive SCPO as an alternative because there will be a slightly lower standard of proof, no jury and the ability to rely on hearsay evidence.

Even if SCPOs might work, would they be justified? They impose restrictions on people because of what they may do in the future, not what they have done. I recognise that that might be legitimate as part of the sentencing process; that is to say, where there has been sentencing following the commission of a crime. That is part of the reason for imposing longer sentences for re-offenders. But here we have a power to impose restrictions of any kind on people who have not been found guilty of any relevant crime, on the basis of a belief—which, admittedly, must be a reasonable belief—that that person is likely to be involved in future offences which the court considers serious or which are on the list of serious offences. When, in a prosecution, one is looking at the possibility of future conduct, there can never be anything approaching certainty about what that conduct might be. It is not a case of saying, “on the balance of probabilities”; it just has to be a reasonable suspicion.

What are we doing here? Part 1 is the most authoritarian legislation I have ever seen promulgated in the United Kingdom in peacetime. It is a law worthy of an authoritarian state such as Belarus; it is not worthy of the United Kingdom. Restrictions on liberty as extensive as those possible under the Bill should be applied only on the basis of a criminal conviction. SCPOs are very similar to control orders, the only difference being that they are made by a judge rather than by the Home Secretary and are then judicially reviewed by judges. Control orders were, as I said, introduced to inhibit terrorist mass murder. There is no justification for extending them to the entire criminal justice system, which is what the Bill will do.

The Government say that all this is okay because SCPOs will be made by judges who will act reasonably; they will be aware of the impact of the Human Rights Act and will apply it. That is true, but it is not an answer. We should not create laws which enlarge the scope for injustice and rely on the judiciary to apply them with moderation. What we want are just laws, not the just application of unjust laws. That would be contrary to the rule of law. Part 1 is, I believe, incompatible with the basic principles of the criminal justice system, which have existed in this country for centuries, and it is incompatible with the rule of law.

I would like to think that the Minister, who had a very distinguished career at the Bar, is as aware as I am of the fundamental defects of Part 1. It should be removed from the Bill lock, stock and barrel.

My Lords, I speak as a member of your Lordships’ Constitution Committee. Unfortunately, our chairman has to be elsewhere and, in the best Army tradition, I have been volunteered as his inadequate stand-in.

The committee has produced a fairly brief report on the Bill, and on Part 1 in particular. It was published only last Friday and, as some of your Lordships may not have had time to study it fully, I was going to deal briefly with its main points. However, not having the status of the chairman of our committee, I did not get the position he would have had on the speakers’ list, so parts of the report have already been quoted. I will try to be coherent without being over-repetitive.

We received this morning an extremely prompt reply from the Minister; it seemed not to dispute the substantive comments we made so much as justify—or seek to justify—the departure from the constitutional norm in what she says are the exceptional circumstances of the Bill. I join the noble Lord, Lord Goodhart, in saying how delighted we are to see the noble Baroness back; her presence greatly enhances debates on this Bill and any other on which she will enlighten us.

The final sentence of our report, which has already been quoted, reads:

“Whether or not the trend towards greater use of preventative civil orders is constitutionally legitimate (a matter on which we express doubt), we take the view that SCPOs represent an incursion into the liberty of the subject and constitute a form of punishment that cannot be justified in the absence of a criminal conviction”.

I shall seek to indicate why we reached that conclusion.

Under the Bill, a serious crime prevention order can be made by a civil court acting on the civil burden of proof against someone who has not been convicted of any crime. The Minister says, and I am sure rightly, that the court will impose a quite high standard of proof, but that is not expressly provided for. In addition, there will be no jury, and hearsay evidence and such matters will be admissible, which would not be the case in a criminal trial.

The court has to be satisfied of two things. The first is that the individual has been involved in a serious crime. That can be anywhere in the world and “involved” includes, for example, a person conducting himself in a way that was likely to facilitate the commission by anyone of a serious crime, whether or not that crime was committed. I ask your Lordships to note that the Bill does not in any way say that the individual has to be intentionally or knowingly involved in facilitating the commission of a crime; he has only to do something that is likely to facilitate it; therefore, he can have done it without any fault on his part at all.

The court must then have reasonable grounds to believe that the order would protect the public by preventing or restricting an individual’s involvement in serious crime in this country. Again, it is important to note that that can be any serious crime, not only offences of the same kind as the court believes the individual has already been involved in. The Minister’s response to that criticism is that serious criminals are nothing if not flexible or diverse, and a drug smuggler may switch to people-smuggling. Criminal ingenuity is nothing new, but in this Bill we have committed ourselves for the first time to the proposition that if you have committed one crime you should be deemed highly likely to commit other sorts of crime, although they are not even of the same kind.

A serious crime may be one of those offences listed in Schedule 1, many of which are obviously serious and some of which could be serious or could be trivial. As other noble Lords have said, others seem almost inevitably trivial, although someone such as the noble Lord, Lord Kimball, would think that fishing with a prohibited implement was probably a much more serious crime than murder, treason or rape. However, a serious crime may also be—and this, one would have thought, will raise the eyebrows of most people used to the criminal law—any other offence that the court considers to be sufficiently serious to be treated as if it were on the list. Therefore, the Government accept that the court will have very wide discretion in deciding what fulfils the test, and the person in question may have no knowledge when he was thought to be going to commit or facilitate a crime that it was one that brought him within the legislation.

When the court has decided that the two requirements have been fulfilled, it can make an order containing any prohibition, restriction, requirement or other term as it thinks appropriate for protecting the public by restricting that person's involvement in any type of serious crime. As has been said, the Bill gives examples of the kind of provision that can be made but does not impose any limit. Extremely wide-ranging examples have been read out, but that does not mean that they cannot range even wider.

I come to perhaps the most amazing provision of all: you are not to do anything that a police officer tells you that you are not to do. A police officer can say, “You are not to go out of the house the whole weekend and you are not to allow anyone to visit you”. It can be said that that provision might be set aside. None the less, it will be there unless and until somebody succeeds in having it set aside.

It seemed to everyone on the committee that these provisions are a major departure from the basic principle of English common law, whereby the criminal law is the only mechanism to punish criminal activity and the civil law can grant an injunction only on a claim by an individual who has already been injuriously affected by the defendant’s wrong, and then only to prevent a repetition of that wrong.

It is true that there has already been some erosion of that general principle in football banning orders and in ASBOs, but in our view the Bill goes a long way further and wider than anything which has gone before. It is not for the committee to decide whether the policy of the Bill is necessary, justifiable or desirable. We merely draw the House’s attention to the fact that it seems to constitute a major change to the principles of our constitution, and a change that, we suggest, the House may wish to consider very carefully.

My Lords, the speeches that we have heard this afternoon illustrate a justification for the existence of the House of Lords in its present form. I shudder to think what would happen to this sort of legislation if this Chamber did not exist, given the expertise and depth of knowledge that we have heard today.

I ask myself how it is that the Home Office produces this endless procession of ill conceived and ill thought-out law and order Bills. I conclude that it is because it lacks three things: judgment, practicality and focus. One of the great problems we in the UK have is persuading the European Union to underline proportionality in its proposals. That is also a real problem for the Home Office.

Like most noble Lords who have spoken, I am astonished by the Bill’s schedule of offences. I believe that trout tickling has been mentioned. The Bill refers to offences under the Wildlife and Countryside Act and to offences concerning the treatment of waste under the Environmental Protection Act. If the Home Office regards those as serious crimes, quite apart from the fact that there is a let-out clause to include everything else, all I can say is that the RSPB has missed a trick. It had better get in touch with the Home Office and have the offence of egg collecting included. The RSPCA should get in touch about hunting, which is a perfect offence to include from its point of view. The Open Spaces Society should have a go at the abuse of footpaths. There is plenty of scope for more offences to be added. However, I hope that these Benches will remove such provisions in Committee.

I share the anxieties about Part 1. For me, it is too Stalinist. I refer to the concept of arranging for courts to classify unconvicted persons almost as if they were what were referred to in Soviet days as “enemies of the people”. That is a step away from the light of democracy towards the shadow of totalitarianism and it is quite unacceptable. I hope that it will be removed from the Bill, as other bad things have been from other Bills.

The Government are not doing things that should be done in the Bill. For example, we can make it a great deal more risky for criminals to carry guns in the streets. I shall, therefore, be reintroducing an amendment that I tabled previously to give the police powers to search for firearms. That would be in Part 3, which is entitled:

“Other measures to prevent or disrupt serious and other crime”.

I shall propose a new clause after Clause 75. I very much hope that the Government will recognise that what has happened on our streets since I made the proposal in October has reinforced the case. Those parliamentary colleagues with whom I have discussed this agree with that.

There are other opportunities to improve Part 3. There are proposals to extend data sharing that are not acceptable in their present form. We really need to make sure that we collect the data that we need—that the state collects the data that it needs. As the Minister knows, I have tabled a number of Written Questions, and I thank the Home Office for replying to them much more rapidly than it has in the past; that is a bouquet, at least.

As the Minister may know, Sub-Committee F of the European Union Select Committee, of which I am a member, has been studying the implications of the second generation of the Schengen information system. This is an EU-wide system for the collection and exchange of information relating to immigration, policing and criminal law for the purposes of law enforcement and immigration control. The UK has not, rightly in my view, signed up to the Schengen agreement. We continue to control our own borders. That means that there are limits to the amount of Schengen information that we can share. In my view, any modern state needs to know with certainty who its citizens are and who is residing in the state. The problem is that our present manner of identifying citizens and residents of the UK has been found wanting.

I will give some examples. First, believe it or not, anyone in the UK may lawfully change their name without any notification to the authorities that may need to deal with those persons. The Registrar-General for England and Wales set this out extremely clearly in a letter to me dated 29 January, which was published in Hansard. It said:

“There is no government agency that is responsible for registering the change of name of individuals. There is no requirement to register a change of name for it to become lawful. An individual may choose to make a statutory declaration or deed poll in order to provide evidence of their change of name. There is no central record of all name changes. Individuals are responsible for notifying relevant agencies that they have changed their names”.—[Official Report, 29/1/07; col. WA 15.]

This reveals a system that is quite simply anarchic. It would not inspire any respect from any Schengen member state. Note that, although individuals are responsible for notifying agencies of their change of name, they are under no obligation to do so. The present system is one that enables and, indeed, incites those of evil intention to conceal their identities with full legal cover. I hope that perhaps we might introduce an amendment to correct that situation.

Passports are supposed to enable the Government to control those who enter and leave the country. First, there is no official passport inspection by the immigration authorities of those leaving the country—only the airlines look at your passport, and that is not the same thing, nor is it an acceptable substitute. Secondly, there is only now starting to be an electronic record made of those arriving in the country. This facility is not, I understand, in full operation at all points of entry. If I am wrong about that, I hope that the Minister will correct me.

Next, let us examine the security of a passport. On 31 January, the noble Lord, Lord Bassam, kindly informed me in a Written Answer that, during 2006, the Identity and Passport Service processed 291,000 reports of lost or stolen passports. In the same year, it issued 298,000 replacement passports. How many of those were multiple replacements for the same person? How effective is the cancellation of a lost or stolen passport? How quickly does this information reach our frontiers? Of what use is it to prevent those using a stolen passport from leaving the country?

I was also informed that no attempt is made to cancel the passport of someone who is serving a custodial sentence until he or she has been released. Nor is any attempt made to pass to the security authorities the passport details of British citizens who have been detained overseas, even though the British consular services, when they have dealings with such people, collect the data. That information is just not used.

This ill conceived and ill thought-out Bill offers the opportunity for us to put into it things that need doing and I certainly hope that we will remove the things that should not be in it.

My Lords, I declare an interest: I am a lawyer, but I have never practised in criminal law and I hope that that will not become too apparent during our discussions on the Bill.

There are a number of extremely serious flaws in the Bill, to which my noble friend Lord Thomas of Gresford and other noble Lords referred, and I hope to be able to advert to some of those during the later stages. We are facing yet another Home Office Bill, and it is a Bill that has serious and fundamental flaws which undermine the liberties of our fellow citizens.

I should like to say a few words about the targets of the Bill: the tracing and sequestration of assets, intelligence, the international exchange of information and tax fraud. The Minister has said that many of the targets of this legislation are “not stupid”. That is an understatement. I note that individuals, companies, limited liability partners and presumably trustees are covered by the Bill, but I think that everyone in the House will agree that much serious crime has an international element and that enforcement will, in many instances, depend on the co-operation of other jurisdictions.

We rely on other jurisdictions for exchange of information and intelligence. In Committee, we shall have the opportunity to gauge whether sufficiently effective systems of international co-operation are already in place and whether we are using them adequately, properly and conscientiously. We need information and intelligence from overseas jurisdictions but we also need to be able to recover proceeds of crime from banks and other institutions and even from the most—shall I say?—protective and opaque regimes.

There are additional powers to assist the quest of Her Majesty’s Revenue and Customs to bring tax fraudsters to justice. I appreciate, and wholeheartedly agree with the Minister, that these powers are not appropriate in respect of HMRC’s day-to-day compliance work, but I remind her that in some countries—for example, in Switzerland, I believe—things such as tax fraud are definitely not criminal but civil matters.

The successful detection and prosecution of tax fraud often leads to the discovery and detection of other serious offences. Some years ago, the Government embarked on a series of international negotiations, even involving tax-haven countries, for more open exchange of information. I debated in the other place the first of such orders some two or so years ago. The order gave us very limited rights to obtain very limited information. In Committee, we shall have the opportunity to gauge the progress that the Government are making in tackling serious international crime and their effectiveness in pursuing such crime, given the powers that they already have.

As I said, there are some major and fundamental objections to parts of the Bill, but we shall wish to probe the effectiveness of existing powers, as well as the appropriateness and proportionality of the powers that the Government are seeking to take.

My Lords, I share many of the reservations expressed in your Lordships’ House this evening, but the Minister’s opening words, that this is a significant Bill, should be emphasised. The title itself, simple though it is, should focus our attention on a nationally serious problem.

I am generally comfortable with Part 2 of the Bill, certainly in so far as it covers the encouragement of, or assistance in, crime; inchoate liability, as many of us in this House know, has been a subject demanding address for some time. I am also comfortable with a good deal of Part 3, certainly in so far as it applies to the Proceeds of Crime Act 2002 and the suggested absorption of the Asset Recovery Agency into SOCA. The ARA has been a failure and has not recovered the sorts of sums that it should. One hopes that the projected move will improve that position considerably. However, I, too, have serious reservations about Part 1 and the aspects of Part 3 concerned with data mining—a term that I had not come across before, but which I have no doubt we will explore later.

I look at this issue as two sides of the same coin: the obverse and the reverse. On the obverse, it is one of those rare and strange coincidences that almost exactly 10 years ago, when I was leaving my post as Her Majesty’s Chief Inspector of Constabulary, I saw the launch of an operation against a then target criminal, Terry Adams. This morning, the newspapers are full of his conviction. Unsurprisingly, the Daily Mail had perhaps the biggest headline:

“Downfall of Britain’s ‘Godfather’ of crime”.

It said that, after a £50 million, 10-year investigation, the head of Britain’s most feared crime family finally—“finally” was in capital letters—faces jail.

During those 10 years, it is conservatively estimated that Adams racked up a £200 million criminal empire. Reading the newspapers, you would believe that he is the only major criminal—one name that shone out in that pantheon of criminality above all others. To balance that, one could talk about Kenneth Noye, Curtis Warren, the Charrington brothers or many others. All of them, in my ex-professional experience, have a series of typical attributes. They were and are all ruthless. They are violent to the point of using torture, extortion and murder as an easy recourse. They are avaricious, cunning and corrupting, and, above all, they are wealthy and they swagger. They swagger because they believe, often rightly, that they are impregnable to the deprecations of the law. They put in mechanisms and layers around and beneath them to prevent the legal process from getting to them. They cause mega-billions of damage to our economy, and a great deal of suffering.

I will come to the other side of the coin in a moment, but it is not just that these criminals operate in the stratosphere of crime. One would see two results at street level. First, it is their drugs, large numbers of pirate DVDs, prostitutes, imported firearms, illegal immigrants and protection rackets that affect all of us at street level. That is the scope of the problem. Secondly, small criminals are imitative. Little criminals, naturally enough, aspire to be bigger criminals. They look up at those with bigger cars, better suits and all the trappings of criminal wealth, and they aspire to move up. The higher the level at which we allow the top criminal to operate, the greater the ladder of criminal opportunity.

The Serious Organised Crime Agency was created to deal with core criminals—a very small number of very large fish. It is a multi-agency organisation, and it is not likely to be involved in ordinary, run-of-the-mill investigations. It will not deal with somebody who comes into its office and asks for a crime to investigated, which would happen in the average CID office. It is in the business of being pre-emptive and it tries to prevent, rather than detect, crime. It is in the business of thwarting, disrupting, dismantling and destroying criminal empires, and it goes without saying that it does so within the law. Prevention orders and data sharing could be the way forward but, as has been eloquently expressed from all parts of the House, we must not lose a sense of proportion in this debate. There is too much elasticity in parts of the Bill. There is too great a risk to the innocent and the Bill could be another assault on the central pillars of our constitution and our criminal justice system.

I shall keep my remarks short because the ground has already been covered. Part 1 bothers me as it bothers many other noble Lords. ASBOs have been mentioned; “too many” and “too loose” are epithets that could be attached to them, as they could be to serious crime prevention orders. I have no quarrel with the title—serious crime prevention is what this House and the whole of society should be involved in—but they come suspiciously close to control orders. I believe that the degree of legal uncertainty in the Bill is unacceptable. There is a need for greater specificity within Part 1. There are too few limits on the type and scope of its terms.

We have already explored Part 3. I am not altogether sure what data mining means, but it seems to me that we would have no problem with exchanging data on a target organisation or person. It might have been a good idea to have had that resource to target the criminal enterprise of Adams, the man I mentioned who filled the newspapers this morning. Joint police operations with HM Revenue and Customs sharing information in that way are presumably a good idea.

However, we should not go on fishing expeditions—with my tongue firmly in my cheek, I say that I, too, was surprised to see salmon and trout fishing in Schedule 1 to the Act. As I am a man who spends much of his spare time standing up to his waist in Scottish rivers looking for fish that do not exist, noble Lords might expect to find me in Committee arguing very strongly to keep that provision in the Bill—but, seriously, I share the doubts about some of the examples in Schedule 1. 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. Not so very long ago, the Information Commissioner said that as a society we are,

“sleepwalking into a surveillance society that is already all around us”.

We are talking about means and ends. So far as the end is concerned—combating serious organised crime—let none of us lose sight of the fact that it is a real and dangerous problem. The end set out in the Bill has to be sensible and supportable. It is critical to the social stability and well-being of this nation. We have to give support to SOCA, as it is currently set up. At the same time, we must address very serious questions, in Committee and after, on the means that we use to achieve those ends. I share many of the doubts about how the Bill is drafted so far as means are concerned. I look forward to a full exposure and critical examination in Committee.

My Lords, I endorse the sentiments expressed by my noble friend Lord Goodhart. Perhaps I may say how delighted and pleased we are to see the noble Baroness, Lady Scotland, in her usual place. I thank her for introducing the Bill. Those are about all the good things that I will say for now, but there are many issues that we will need to tease out in Committee.

Two days ago I had the pleasure of a very informal chat with the noble Lord, Lord Peston, in the Library. The conversation turned to the Serious Crime Bill. We both agreed that there was a basic flaw in the way in which the Bill is framed. Nowhere is there a clear definition of “serious crime”. We have a category of crimes that are identified as serious. I will name a few: drug, people and arms trafficking; prostitution and child sex; money laundering, fraud, corruption and bribery; counterfeiting; blackmail; intellectual property offences; and environmental offences.

The first question for the Minister is: if there is no definition of serious crime, where is the threshold at which a crime becomes a serious crime? When is a serious crime downgraded to a not-so-serious crime? Schedule 1 to the Bill lists serious offences. That is helpful, but what will Joe Public make of that schedule? A number of noble Lords have talked about the issue of seriousness in relation to paragraph 11(1), which refers to,

“fishing for salmon, trout or freshwater fish with prohibited implements”.

If I were an angler, that would be a very serious matter, but how do you convince people in our inner-city areas that robbery with violence or gun crimes are less serious than a fishing expedition?

No one would dispute that serious and organised crime must be tackled. That is a common understanding among us. Such crime blights the lives of law-abiding citizens, and prevention and detection must be at the heart of any legislation. Equally, we must ensure that no criminals benefit from it. For those reasons, we want the Serious and Organised Crime Agency to succeed.

We do not dispute that Parliament should ensure that the law enforcement agencies have all the tools necessary to eradicate crime, but, in doing so, we must tread very carefully on matters of rights and liberties. My noble friend Lord Goodhart spelt out the dangers. I was delighted to listen to the noble Lord, Lord Dear, with his vast experience of policing matters and of a number of major investigations that he has led. His experience is so vital that we should take serious note of what he says about Part 1. That is the advantage that we have in the House of Lords, compared with the people in the Commons; we have people with vast experience on the issue that we are dealing with and, if we do not take their advice, we do so at our peril.

Part 1 introduces a new serious crime prevention order, which would take the form of a civil injunction, a breach of which would be a criminal offence. The proposal is similar in its construction to the current sex offender order, which can be used to place restrictions on someone previously convicted or cautioned for sexual offences who is behaving in a way that is preparatory to committing a further offence. For example, if someone with a history of sexual offending against children has started hanging around near school playgrounds—which is not in itself a substantive offence or an attempt to commit an offence—a court can pass a sex offender order requiring him to refrain from doing so. That is a reasonable power, which can be of obvious value in preventing crime, provided that it is used appropriately and proportionately.

Under the Bill, for a crime prevention order to be imposed, an offender must previously have been involved in serious crime; he or she must now be behaving in a manner likely to facilitate further serious crime; and the court must consider that the restriction that it imposes will prevent the offender’s involvement in further serious crime.

However, the scope of the provision is drawn very widely. In particular, the Bill is vague about what activity counts as serious crime. As I said, Schedule 1 contains a list of offences, but they include offences such as fraud, which range very widely in seriousness. Particularly disturbingly, Clause 2(2)(b) also allows courts to pass a crime prevention order on people with previous offences that are not specified in the schedule but which,

“the court considers to be sufficiently serious to be treated ... as if it were so specified”.

In other words, the court can regard any offence that it likes as serious. That is an Alice in Wonderland definition; it is effectively saying that words can mean whatever the courts want them to mean. That is an unacceptably wide degree of discretion to give courts in relation to powers that could potentially be used to impose significant restrictions on the liberty of individuals who have not been convicted of a new offence.

This is where we need to take serious note of the Constitution Committee’s report on the Bill—a point well stressed by my noble friend Lord Goodhart. Many noble Lords have commented on matters relating to serious crime prevention orders and, in particular, about the far-reaching restrictions that may be placed on a person against whom no criminal proceedings have been instituted.

The Government’s strategy to defeat organised crime now goes beyond intelligent policing and law enforcement provision. The Bill now introduces measures to prevent crime from happening in the first place. Have the Government quantified the resources, both financial and administrative, that are required to deal with this area of offences? At present, nearly 10 young persons a week are sent to prison for breach of ASBOs. What will be the impact on the prison population if that trend continues with the so-called adult ASBO orders?

Part 2 abolishes the offence of incitement and replaces it with two new offences: one of intentionally encouraging or assisting crime; and one of encouraging or assisting crime believing that an offence will be committed. In principle, that is a welcome provision, which will both clarify the law and remedy a lack of logic in the current common-law provision. Currently, someone who encourages another person to commit a crime is guilty of an offence, even if the other person does not in fact commit the offence, but someone who actively assists another person to commit an offence does not commit an offence if the other party does not in fact go on to commit the crime. There is an obvious lack of logic in treating words of encouragement as more serious than the deed of actually helping someone to commit a crime—for example, by giving another person an instrument for them to use in a burglary or an assault.

The newly formulated offences proposed in the Bill, which are based on recommendations by the Law Commission, would make the law more logical and consistent. They are limited to circumstances in which the individual either intends a crime to be committed or assists someone to commit a crime believing that it will be committed. The Government have wisely retreated from the idea of defining the mental element in the offence more widely than the Law Commission recommended, which they were considering at one point. Although the detail of the provision will be scrutinised carefully in Committee, the overall shape of Part 2 seems to be reasonable and any lingering doubts could be resolved in Committee.

Part 3 contains a range of measures on the provision of information for the purpose of preventing and detecting fraud. It also transfers various functions of the Assets Recovery Agency. I need not go into that, because generally that organisation has had a record of failure in recovering assets. Let us hope that SOCA will achieve better results than the ones that we have had so far.

To sum up, the Bill contains some measures that, if used appropriately, could play a legitimate and useful part in tackling serious crime. However, some aspects of the Bill, particularly Part 1, contain wide and loose definitions, not least of serious crime itself, which must be clarified and, where necessary, restricted before this legislation reaches the statute book. If that is not done, the Bill is heading for serious trouble during its further stages in this House.

My Lords, I follow other noble Lords in welcoming the Minister back to the Dispatch Box to introduce the Bill. We in this House have certainly missed her. We missed her on the Corporate Manslaughter and Corporate Homicide Bill, which has been taken very ably through the House by the noble Lord, Lord Bassam, who is sitting on her right, assisted by, I think, two noble and learned Lords. We probably also missed her on other Bills. However, I suspect that the Home Office has also missed her. By my reckoning, this is probably the 60th piece of Home Office legislation in the past 10 years since new Labour came to power. I understand that there were only 48 pieces of Home Office legislation in the previous 100 years. One suspects that the legal department, or the drafting department, or whatever it is, of the Home Office has been getting bigger and bigger—growing, I suppose, like Topsy. At the same time, I suspect that other departments in the Home Office have suffered reductions; we all know the result of that.

Furthermore, it is only two years since we had the Serious Organised Crime and Police Bill. This Bill is called simply the Serious Crime Bill. One really would like to know what the Home Office is up to by introducing quite so much legislation. Will this, as I suspect quite a lot of the other legislation did, sound as though it will do a great deal but, in the event, not achieve much at all? Is it simply the macho posturing of the Home Secretary, or is it mere legislative gesture politics, as I think I have described other legislation?

This evening, we get back to the Bill itself, and I shall put several questions to the Minister, which I think she should answer. Many of them have already been asked far more ably by noble Lords from all sides of the House. Here are a few that bear repeating. First, much has been made of ASBOs and of control orders. As my noble friend Lady Anelay made clear, they are simply not working as they should. The Minister should let us know how she thinks the prevention orders, which deal with serious, organised criminals, will work. Secondly, as several noble Lords have made clear, the burden of proof will be decided, as I understood it, and as I think the noble Lord, Lord Thomas, understood it, on a balance of probabilities. The noble Lord quite rightly intervened to ask the Minister whether that was the case. She said that it was, but that the burden of proof in this case would be much tougher and much nearer to the criminal burden of proof. However, the balance of probabilities in Clause 1(1)(a) and (b) looks just the same as it did, and we need more than just the Minister’s assurances to deal with this. Clearly it would be no bad thing to have an amendment to the Bill.

We also need to address the question asked by the noble Viscount, Lord Bledisloe, which arose from his examination of the Bill in the Constitution Committee; namely, what evidence would be allowed to go before the High Court in these cases, and would, for example, hearsay evidence be admitted on these occasions, if I understood the noble Viscount, in the way that it would not in a criminal case?

I turn to the list of offences in Schedule 1. A number of noble Lords quite rightly made light of them and I would probably want to do so. Does the noble Baroness remember the seminal Mel Brooks film “Blazing Saddles”? The chief bad guy, when persuading his gang of hoodlums to attack some small, benighted town lists all the offences they are supposed to commit: murder, rape and arson, and on he goes. If this Bill had been passed and he was listing all the crimes they had to commit, he would have to add fishing for salmon, trout and freshwater fish with prohibited implements. It seems extraordinary. To treat it slightly more seriously, as the noble Lord, Lord Dholakia, did, how do you explain to the man in the street or the man on the Clapham omnibus what a serious crime is when you have included fishing but not, as my noble friend made clear, armed robbery? All of us see that as a serious crime and certainly one that serious, organised criminals get involved with.

Four pages of the Bill are devoted to Schedule 1 and the same four pages are repeated for Northern Ireland. That seems completely unnecessary because under Clause 2(2)(b) the judge can then add whatever he wants, a point made by the noble Lord, Lord Goodhart. The list in Schedule 1 is therefore not necessary because the judge can decide what will be a serious crime if it is not listed. The noble Baroness ought to assist us—we will certainly assist her in Committee—to bring further light to this extraordinary list.

Clause 5 deals with the type of provision that may be made by orders. Clause 5(1) refers to the type of provision but adds that it does not limit the type of provision that may be made by such an order. Again, it seems that there is no limit to what the judge can do. I suspect that those like the noble and learned Lord, Lord Lloyd, who have served as judges would agree with me when I say that these are not things that would be right and proper for a judge to decide, just as it is probably not right or proper that a judge should decide exactly what is a serious crime when he cannot find it in Schedule 1.

I turn to less controversial parts of the Bill. Part 2 deals with encouraging or assisting crime. The Minister made it quite clear that this was largely in response to Law Commission recommendations. She admitted that they are complex and technical and agreed that they would need careful examination, I think she is right. She said she looked forward to exploring this in detail and so do we. As my noble friend made clear, we particularly want to expose and explore those areas in Part 2 where what the Government have included is different from what the Law Commission recommended. It is important that we look at that matter in detail in Committee.

I turn to Part 3 and what my noble friend described as the very sweeping changes it makes to our data protection laws. This needs very careful examination. My noble friend Lord Lucas referred to the need to collect yet more information. I think I ought to warn him that if yet more was collected, particularly by the Home Office, we really do not know what would happen to it, because we know what has happened to a great deal of other information that has been passed on. There are certainly some very worrying aspects to all this, particularly in relation to data sharing between different agencies, both public and private; in other words, the ability to look at the details of one's credit cards, store loyalty cards or whatever to try to find patterns that might indicate criminality. We want to look at certain things, but we will enter that process with an open mind, as my noble friend said.

The last part of the Bill on which I want to comment is Chapter 3 in Part 3. The noble Baroness will remember that Clause 75 which is, in effect, Chapter 3, relates to the extension of powers of Her Majesty's Revenue and Customs. I am always very alarmed when I see any extension being granted to HM Revenue and Customs. We know that Revenue and Customs has always had very excessive powers and probably still does. However, I am grateful for the assurance from the noble Baroness that the new powers may be used only for the investigation of serious crime. As I said, bearing in mind the already very extensive powers that HMRC has, we would certainly wish to explore that matter further.

I do not wish to be negative about the Bill and I hope I have not been. I end with a brief suggestion about how the Bill can be improved and what we can do to assist further the appropriate authorities in the fight against crime. I ask the noble Baroness to take note of what the noble and learned Lord, Lord Lloyd of Berwick, said. He seeks to improve the rules of criminal evidence by allowing evidence obtained by the use of phone tapping and other electronic surveillance to be admissible in court. I hope that the noble and learned Lord will seriously consider tabling amendments about that. If he does, we shall certainly support them, and if he does not, we would be willing to table them ourselves. I hope that in advance of the Committee stage the noble Baroness will give some indication that she will be able to accept such amendments.

My Lords, I thank all noble Lords for their participation in the debate. I thank most warmly the noble Lord, Lord Goodhart, the noble Viscount, Lord Bledisloe, the noble Lord, Lord Dholakia, and others who have expressed such kindness about my current position. Many have written to me and I thank the noble Lord, Lord Henley, for joining in that kindness. At one stage, I thought that the expression of condolences was just to see whether the House could do that which it has never achieved before: to make me cry at the Dispatch Box.

I also thank those who have supported the ethos and the purpose of the Bill, even if not all have wholeheartedly supported the way in which it has been done. Some of the barbed support will certainly be taken on board. I thank, in particular, my noble friend Lady Gibson of Market Rasen and the noble Lord, Lord Lucas, for his support in relation to data sharing.

I understand the anxiety expressed about ensuring that the provisions to address these very serious offences are proportionate and fair. I take on board the comment made by the noble Lord, Lord Goodhart, that law has to be just, as well as being justly applied. Those issues are very important indeed. I warmly thank the noble Lord, Lord Dear, because he encapsulated so beautifully the danger that is posed to us and to our communities by serious, organised criminals who undertake their pernicious crimes with a sense of arrogance, disregard and wholesale criminality in a way that is very shocking indeed. Our need to grapple with those issues cannot be underestimated and I am very grateful to the noble Lord for giving us such clear examples as to why that is so.

I also take very seriously the concerns expressed by the noble Lord, Lord Dear, the noble and learned Lord, Lord Lloyd, and the noble Lords, Lord Thomas of Gresford and Lord Goodhart, among others, about the need to get this right. That cannot be underemphasised. I particularly want to say how much I agree with the noble Lord, Lord Burnett, that this issue does not just affect us in the United Kingdom. Regrettably, serious crime has become an international business. These are multi-national criminals who often carry out their pernicious practices in many jurisdictions. Therefore, the need to understand comity and how we promote effectiveness and appropriate measures is absolutely critical.

I do not share with some noble Lords the belief that ASBOs, for instance, have been unsuccessful. I know that that view was initially expressed by the Liberal Democrat Benches, but I have had the joy of seeing a Damascene-like conversion: many Liberal Democrats have now joined to support the efficacy of anti-social behaviour orders if appropriately and proportionately used. I understand entirely the need for that.

That is why I want to remind the House that we have put certain stringent boulders in the way of inappropriate use of these orders. These are not orders which we think will be used on a wholesale basis, but orders which will be capable of being used very judiciously. That is why it is not the general Crown Prosecution Service which will be empowered to ask for these orders. Only three prosecuting authorities will have the ability so to do. I hope that the House will accept that the three identified are those that are charged on our behalf with dealing with the most serious offences. The evidential burden that will need to be discharged will rightly be heavy.

I thank those who have acknowledged the sliding scale in relation to the balance of probabilities. The noble Lord, Lord Goodhart, correctly referred the House to the McCann case in 2003 which set the standard very clearly for those who thought that it might, as time has passed, have come in doubt. It reaffirmed that he who asserts must prove and if the assertion is of a serious nature one has to produce commensurate evidence to discharge that balance of probability. In the most serious issues, quite often the distinction between the criminal standard and the civil standard will be negligible.

My Lords, I thought that in the McCann case the House of Lords said that the correct test was whether the court was sure. If that is so, that is indistinguishable from the criminal test. So can we not get away from the civil test altogether?

My Lords, the reason that the civil test is the appropriate one is that there may be different factors which will need a different level of proof. The noble and learned Lord will know well that we are—I do not hesitate to say—blessed with some of the best judges that the world has on offer. Our judges are very used, as the noble and learned Lord will know from his own experience, to making that judicious balance as to which factors need to be proved beyond reasonable doubt, which factors need a heavy burden of probability before the court would be capable of being satisfied about it and which factors can be safely used to a lesser burden. Overall, the court will take into account the different parts of the evidence and in the end have to judge whether the totality of the evidence produced reaches the commensurate standard with the assertion which has been maintained by the party so that it is discharged. That has proved over time to be an extraordinarily flexible and accurate tool for those properly trained to employ it. My noble friend Lady Gibson is therefore right about training. Noble Lords will know that particularly now with the Judicial Studies Board, every time we have new legislation we can ensure that there is appropriate training not only by legal practitioners but also by the judiciary in how to respond. I can assure her on that important matter.

I shall now concentrate my remarks on Part 1 because it has excited the most concern in the debate. I thank the noble Baroness, Lady Anelay, for the way in which she approached even Part 1, and because both she and the noble Lord, Lord Henley, along with a number of other noble Lords, have made it relatively clear that there is less concern about Parts 2 and 3, although there are issues related to data sharing and the operation of the Data Protection Act. The nature and specificity of the offences covered by Part 1 are important. I was tempted to rise during the debate to try better to explain the fishing example, but I confess that I was so enjoying the enjoyment of noble Lords in making their case that I hesitated to do so until it was my time to speak.

We have some serious environmental issues to tackle in relation to the inappropriate fishing of endangered species. They are fished on a wholesale basis for gain. It is a serious crime which damages both our fishing industry and that of Europe, and we are obliged to address it with appropriate seriousness. There is also the problem of dumping at sea, a form of pollution which has environmental consequences. These are serious crime targets that we are seeking to deal with in this Bill.

Certain cases are systemic while other serious offences are one-offs. We are looking at things that happen repeatedly. I also want to reassure the House that we are clear that if serious crime is identified, it should be investigated, prosecuted and the perpetrators brought to trial wherever possible. This part of the Bill looks at prevention, once patterns of serious crime have been established. It looks at how to prevent those who have been so identified continuing those patterns of behaviour. I anticipate that we will spend some time in Committee dealing with how to establish and define serious crime, what is its nature, its quantum and its continuity, and I understand why the House has identified this as an issue. Bearing in mind what the noble Lord, Lord Dear, described so graphically, I hope that together we will be able first to come to a common understanding and then to craft something with which noble Lords will at least feel content.

During the debate I have encountered some issues that are old friends. One of the oldest of these is intercept. The issue has now become very dear to me. I cannot but see the noble and learned Lord in his place to know that any debate at any time on any day on any issue should have intercept woven somewhere into its fabric. If it were not, I would be deeply disappointed. The same is true of the noble Lord, Lord Marlesford, and I hold the issue of gun crime in the same degree of affection given the debates that we have enjoyed over time. Indeed, I thank the noble Lord, Lord Marlesford, for sending his bouquet in relation to my answers. It is a rare bouquet; I acknowledge it and I am grateful for it. We have canvassed the issue on a number of occasions. We understand what the noble Lord intends to present but I anticipate that we may come to a similar conclusion.

I understand why the issue of intercept has been raised again, and the noble and learned Lord will know that it has remained under active consideration. The issue has not been resolved but, as he and other noble Lords will know, that has not been as a result of a lack of energy. There are difficult and complex points to be resolved. I reiterate that if it could be safely used, the Government would have no objection in principle. We have not yet found a way of using it safely but that does not mean that we will not continue to look at the issue.

Once it has been established that a crime has been committed, we have the possibility of using the orders on a preventive basis. We believe that if they could be used judiciously, appropriately and in a restrained way, it would accrue to our advantage and not our disadvantage.

I am conscious that I have about seven minutes in which to cover Parts 2 and 3. Therefore, if I may, I shall deal more briefly with the other issues raised. I hear with absolute clarity the concerns about mining for information. As I said in opening, the data protection provisions will remain. We were very anxious about the concerns expressed by the Information Commissioner, whose role is to scrutinise issues and to ensure compliance and that he is consulted. We have continued that consultation and are relatively assured that what is proposed in the Bill does not trespass inappropriately on the data protection provisions.

I can assure the noble Lord, Lord Lucas, that we are actively discussing with the commissioner the concerns which he expressed about scrutiny. We are already working with the Information Commissioner at official and ministerial level. As the provisions are enabling powers, the Information Commissioner’s role in them has still to be decided. However, we are committed to creating a transparent, proportionate and fair system which ensures that the right people receive the benefits and services that the provisions are intended to create. As noble Lords will be aware, the Data Protection Act already allows us to deal slightly differently with data for criminal and other purposes. Nothing that we propose in the Bill will trespass against those principles. The noble Lord, Lord Goodhart, raised extensive queries about what that will mean and how we will take it forward. Although I should like to give him a very detailed response, I know from the sheaves of paper in my hand and what is in my head that that may take some little time. We now have notice of all the issues which the House would most like to have answered. I can promise noble Lords that, in Committee, we will bear all those in mind and seek to address them. I thank noble Lords for indicating their concerns now so that we can bear them very much in mind when responding to any amendments.

The tax provisions are very similar to those that already exist. We have transposed the existing provisions into the new provisions in a way that we think is proportionate and temperate.

Before leaving this whole debate, I should like to say that I know that many disobliging comments have been made about the Assets Recovery Agency. With regard to its performance, we need to bear a number of issues in mind. First, it was a new agency. Secondly, the methods it was using to collect assets were complex and untested, and were challenged in the courts. That has reduced the speed with which it was able to work at the inception of the process. The agency has actually been successful, and has defeated all those challenges. As a result, the courts have been able to define what the agency can and cannot do, and what the process is. We have found in the past year that performance has speeded up considerably. This has been the most successful year so far. We anticipate that the outstanding claims, which were taking longer because of that process, will now come through.

I understand the anxieties in what has been said, but I also believe that had SOCA been in existence before we created the Assets Recovery Agency, we would probably have had one agency. I agree with what was said by the noble Baroness, Lady Anelay, that this is a sensible move. SOCA is a very impressive organisation, and we are hopeful that the amalgamation of the two agencies will greatly accelerate our ability to asset-manage.

I know that I have not dealt with each and every issue raised seriatim, but I assure your Lordships that I intend to answer fully when we come to debate this in Committee. I thank the House for its kindness to me and its welcome back, notwithstanding the nature of the Bill I have to propose.

On Question, Bill read a second time, and committed to a Committee of the Whole House.