My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved accordingly, and, on Question, Motion agreed to.

House in Committee accordingly.

[The LORD SPEAKER in the Chair.]

Clause 1 [Serious crime prevention orders]:

moved Amendment No. 1:

I support particular amendments in the names of the noble Baroness, Lady Anelay, and the noble Lord, Lord Henley. Our reasons are very straightforward. We are challenging the name “serious crime prevention order”. The recommended name “organised crime prevention order” is much more appropriate. If this part of the Bill arises out of the need to tackle serious organised crime, it should be described as such.

I thank the Minister for the briefing session yesterday. It was pretty clear that we were talking about serious organised crime, particularly relating to class A drugs, human trafficking and fraud. Serious crime encompasses a much wider bracket of offences than organised crime. Although serious crimes can be linked to organised crime, it is important that such orders are not extended to cover individual offences where there is no evidence that they are connected to organised crime.

Public perception is somewhat different. This amendment should be supported so that the clarification is there for all to see.

As we are discussing the scope of these measures, it is interesting to note that the Explanatory Notes kindly mention that,

“the Bill contains provisions that trigger the Sewel Convention. The provisions relate to creating an offence of breach of a Serious Crime Prevention Order … detained cash investigations and power of forced entry”.

I am familiar with the fact that we are perfectly at liberty to discuss at Second Reading issues that bear on Scotland. However, I am still not sure how far we can go in discussing these measures before a Sewel convention appears from the Scottish Parliament. I hope that the Minister will clarify that. I gather that the draft legislative consent Motion endorsing the principle of serious crime prevention orders will be lodged with the Minister of Justice in Scotland. Has that already been done?

The noble Baroness, Lady Anelay, referred to the kind of criminals to be targeted. I wish to raise the matter of the qualifications of the individuals to be employed in the agency, the resources that will be made available to that agency and when they will be made available. I am grateful to the Minister for organising last night’s meeting with the chairman and director-general of the Serious Organised Crime Agency. The chairman has an outstanding record of public service, is highly respected and is a powerful advocate.

We owe it to our fellow countrymen to ensure that the police and these agencies have sufficient and proportionate powers to bring criminals to justice, but we must, of course, balance these with the freedoms and liberties that we should always enjoy. However, noble Lords on these Benches will ensure that the liberties and freedoms that we enjoy are not stretched too far.

I thank the noble Baroness, Lady Anelay, for the way in which she introduced the amendment. It is clear that it is a probing amendment which seeks to understand how these issues are interpreted. I very much take on board her comments about the use of both “serious crime” and “organised crime” in the consultation document. I shall seek to explain why we settled on “serious” as the most appropriate description.

I too thank the director for talking to us last night about these issues. I shall try to stick within the parameters of Chatham House rules in mentioning what took place. The crimes that we are talking about are very serious, including trafficking in people or in drugs, the illegal selling of guns, or money laundering. They are all committed, for the most part, by cunning, ruthless and innovative criminals. Regrettably, the number of these complex and far-reaching offences is growing. Innumerable offences are being investigated by the Serious Organised Crime Agency which the director, Sir Stephen Lander, explored in detail with us yesterday.

Before the Minister sits down, I make a short plea. This level of international crime is highly sophisticated and the people who operate within it have very bright advisers who are busy helping them to escape the law. This agency requires sophisticated, intelligent and knowledgeable people. There is a cadre of such people available—perhaps not aged 20 or 30, but certainly in their 40s. There are people in the City of London who have probably done rather well and might wish to do something for their country. I am aware of a number of such people in their early 40s; they will not want to be paid the Earth. I hope that this agency will have a pretty wide recruitment policy and will want to attract people of a high calibre, who know about international banking, international money flows and so on, because that is one of the keys to catching the criminals we are dealing with.

Perhaps I may reinforce what the noble Lord has said—he is absolutely right. The Serious Organised Crime Agency has drawn unto itself some real expertise. This involves high quality work that needs the most careful consideration, and there is a total commitment from Sir Stephen Lander to recruit people who will be able to intercept serious crime, which flows in the way described by the noble Lord. I assure him that the need for that sort of acumen is absolutely understood by SOCA and the Government. The noble Lord is right to say that some of these criminals are extremely skilled and they have the advantage of a great deal of illicit money with which to acquire even greater skill.

I listened with great care to the noble Baroness’s answer to my noble friend the Duke of Montrose and I shall read it to try completely to understand what she said. I understood from the last part of her comments that the Sewel motions will be considered and brought up to date tomorrow—I am not sure whether the link between International Women’s Day and serious crime is appropriate. Can we have an assurance that if, in our discussions and in the course of amending the Bill, we create more situations where Sewel motions are required, she will tell us about them and let us know when they are agreed? It is the duty of us in this House to try and keep things right between the two Parliaments so that when the Bill goes to the House of Commons, they know that there is no time lag.

I can indeed give the noble Baroness that assurance. We have kept in the closest possible touch with the Scottish Executive so that we are in alignment with that with which they feel comfortable. I will certainly come back and advise noble Lords of any difficulty and of how we are getting on as we go along. I would not want this House to err.

I am grateful to all noble Lords who have contributed to this short debate. In particular, I thank my noble friends for raising the issues of Scotland with the noble Baroness, Lady Scotland. I am sure we will return to these issues. The Minister has given my noble friends the opportunity, as my noble friend Lady Carnegy said, to consider these matters further between now and Report. The Home Office has a record that is not particularly envied outside, except in respect of its attention to detail over Scottish matters in response to issues raised by my noble friends. We have certainly appreciated the fact that the Bill team has brought to meet us those who advise in Scotland. Therefore in the past we have been able to ensure that Bills are appropriate for action not just in England but in Scotland too. I am sure we will keep our eyes on that as this Bill proceeds through this House.

I am grateful to the Minister for addressing the issue of clarification. We will return to the matter of crimes in detail in later amendments. I was particularly interested in the question of which criminals the Government are trying to target. I note that the noble Baroness tried to explain how criminals have developed in different ways. They are not just more violent and do not just have greater access to funds but appear to be even more careless of the safety and security of anybody else except themselves and are therefore increasingly dangerous to the public, and particularly to those police and security forces who try to protect us.

When the noble Baroness says that the Government have rejected the definition of organised crime because there are so many different understandings of what that is, I have to agree with her. But then the Government seemed to be going out of the frying pan into the fire. In view of the way in which serious crime is treated in the Bill, the Government have raised difficulties about how to construe what serious crime is. They have not been able to resolve those difficulties in Schedule 1, which we will examine later, such that they even leave it to a judge to determine on a day-by-day basis what serious crime may be. We will need to consider that issue very carefully to see whether Part 1 is going to be fit for purpose in the Home Office’s terms.

I am grateful to the noble Baroness. I think she has started to set out the Government’s stall in a way that will assist scrutiny. I am not sure she will be particularly happy with some of the conclusions that we will draw from it, but at this stage I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 2:

This seems to me a rather important amendment. Indeed, it goes to the heart of my objection to the Bill—that is, the use of the civil courts to perform what is fundamentally a function that belongs to the criminal courts.

During her reply at the end of the Second Reading debate, I invited the Minister to have another look at the case of McCann, which is reported in 2003 1 Appeal Cases at 787. My memory of that case was that the House of Lords decided that the criminal standard of proof should apply in ASBO cases. I looked at McCann between then and now. The noble and learned Lord, Lord Hope, said at page 825:

“Given the seriousness of the matter, the court should be satisfied to the criminal standard”.

This very issue was at stake. The noble and learned Lord, Lord Steyn, said the same at page 812. He said that magistrates,

“must in all cases [under the ASBO legislation] apply the criminal standard”.

Nothing could be clearer than that, and nothing could be clearer than the fact that serious crime is a great deal more serious than anti-social behaviour. Therefore, the case for applying the criminal standard in the Bill is overwhelming, and I do not see how the Minister can resist this amendment or the consequential removal of Clause 33(2).

I know that the Minister reads the law reports when she has time, which cannot be all that often. I sometimes wonder whether those responsible for drafting criminal legislation do the same. If she sees her way to accepting this essential amendment, many of my objections to the Bill, although not all of them by any means, will be removed.

I begin my short intervention by saying how sorry I was not to be able to take part in the Second Reading debate on 7 February—a temporary disablement immobilised me. I read with admiration the speeches made on that occasion. I must resist the urge to make a Second Reading speech on this or any other amendment. It is a particularly powerful urge on this amendment because it relates to a provision that was properly described last time as “authoritarian”.

For the reasons touched on by the noble and learned Lord, Lord Lloyd of Berwick, it is an extremely important point indeed. The provision the amendment relates to infringes a fundamental principle of our liberty and therefore of our laws that protect our liberty. That principle is that we may not be subject to a punishment for committing some proscribed conduct unless the fundamental facts to that prosecution are established by reference to the criminal standard of proof—beyond reasonable doubt. That is fundamentally important, and it does not matter with what motive the lawmaker brings forward his legislation. The Minister at Second Reading said: “Oh, but this is not a criminal matter; this is not a punishment; this is a civil order”. I find it very difficult to see how she thought she could sustain that because it is a provision that impinges very importantly and drastically on the liberty of the individual.

It is not sufficient for the Government to say, “You can see what our motive is: it is simply to protect the public from the commission of further crime”. A fairly topical example is that locking somebody up in Belmarsh without a charge can be said to be for the protection of the public. That does not make it any the less a penal intervention in his life and liberty, as the Government have found; nor does it make it any more a civil measure. These orders will apply on proof of proscribed conduct. All of that can be found in Clause 2(1)(a) to (c). Breaching the orders will attract a maximum punishment of five years’ imprisonment. These seem to me to be the hallmarks of a penal provision. If so, they should surely attract the criminal standard of proof. I very much hope that the noble Baroness will reflect further on this and return on Report, or perhaps even later today, to say that she has thought further and better about it.

I would like to pursue a point arising from the points made by the noble and learned Lord, Lord Lloyd, and my noble and learned friend. I have grave concerns with the Bill because of its lack of focus and the uncertainty it engenders. There is one very seriously unpredictable consequence—and I think that the noble and learned Lord, Lord Lloyd, gets close to shadowing the point. If one brings in an order against an individual suspected of a serious crime, he might actually welcome it because it will put him on warning that he is being investigated and give him time to get his assets out of the country before he is arrested. There is nothing like enough in the Bill to provide for taking the natural consequences of an order through to the point of freezing the assets or getting a grip on the individual so that it becomes an offence if he moves any of his assets after an order is given against him.

I appreciate that that is almost a reversal of what my noble and learned friend said, but it is a serious concern. I have had about £0.5 billion worth of fraud carried out against my companies over the years and I have never succeeded in getting a single penny back, whether or not I have had a Mareva injunction—and I usually have. It just does not do in this Bill to have effectively a free warning system to someone that we are coming for him and there is nothing to freeze his assets.

I have considerable sympathy with the speeches made in support of the amendment, but I am rather puzzled as to where, if the amendments are passed, that leaves this whole part of the Bill. As I understand it, the purpose of the Bill—whether it is acceptable or not is another question—is to enable someone to be dealt with where it could not be proved in the criminal court that he had committed an offence, so that the order could be made. If the amendment, together with Amendments Nos. 87 and 88, is passed, first, the order can be made only if it is proved beyond reasonable doubt—that is, to a criminal standard—that he has committed an offence and, secondly, you can use only such evidence as would be admissible in a criminal trial. Surely that means that you have enough to get the person convicted, unless you think, “If I go in front of a judge without a jury I will get a conviction, or an order, but if I go in front of a jury, I will not get a conviction”. Well then, let us abolish jury trials for such offences. I gather that we are about to attempt to abolish jury trials for some other offences.

It seems to me that there will be nothing left of the whole of Part 1 if the amendments are passed, with the possible exception that you may be able to get an order if you can only prove that someone must have been involved in a crime, rather than, as you must do in a criminal court, specifying the crime with which you are charging him and of which he is to be convicted. It is surely not satisfactory to say, “It is obvious that you have committed a very serious crime. How on Earth else have you got this vast sum of money and are living where you do? I cannot tell what it is, but you must be guilty of a crime, so I shall make one of these orders”.

I ask the proponents of the amendments to explain what is left of Part 1 if they are passed. They may say, “No, nothing is left of Part 1, and a jolly good thing, too”. I may agree with them, but we should be clear whether we are being asked to strike Part 1 from the Bill or whether the amendments are something much less.

I shall try not to repeat what has been said, because I very much agree with what the noble and learned Lord, Lord Lloyd, and others have been saying. I want the noble Baroness to tease out and explain to us how the new agency intends to make progress in a way that it could not do through the ordinary criminal courts. I have a great deal of sympathy with the notion that the ordinary criminal standard of proof and the ordinary criminal procedures should have to be applied.

If we move away from that, we shall find two particular problems. First, defendants and prosecutors will not really know where they are. Secondly, there is a serious danger that the procedures will fall foul of the European convention and we shall find cases being taken to Strasbourg. We know—I will not say that this is unfortunate, because I think that it is right—that Strasbourg is very clear that, when penalties are imposed that are in effect criminal, they are treated as criminal and criminal standards are required throughout the case.

Given the Government’s explanation of the matter so far and the likelihood, following McCann and other authorities, that the courts will effectively impose criminal standards in a large part of this, there might be a very great deal to be said in favour of, as the amendment suggests, writing those criminal standards into the Bill. My question, which is, in a way, the antithesis of the question of the noble Viscount, Lord Bledisloe, is: how does the noble Baroness see this working? Can she flesh out briefly with a few practical examples how the procedures will assist?

I sympathise with the Government on their aim. It is important that, as is stated in the Bill, the public should be protected. But this situation would in practice involve the equivalent of a criminal penalty and, given what we have heard from the noble and learned Lord, Lord Lyell, regarding the view taken in Strasbourg, I want further assurance about the Minister’s endorsement on the face of the document that the Bill’s provisions are compatible with convention rights. On further reflection, and having heard the points that have been made, does she maintain that this provision is human rights-proof?

My view is that there may be cases—I presume that this is why the Government are bringing forward the Bill in this connection—where it would be difficult, for a whole host of reasons that I will not go into, to adduce the kind of evidence that would be heard in a criminal court. I would like to hear the Minister’s argumentation on whether, in a situation that inevitably is in the same ballpark as a criminal penalty by the restrictions set out in subsection (3), that is in reality nothing more or less than a criminal penalty.

We would not have to go to Strasbourg. We on these Benches opposed ASBOs when they were introduced on the basis that to use a civil process in the way that the Government proposed would inevitably be a breach of convention rights. That was the decision of the House of Lords in McCann; the Lords decided that, unless there was read into the legislation a criminal standard of proof—essentially, we are dealing with criminal behaviour and criminal penalties—the Act as it was passed in relation to ASBOs could not stand.

Here we have gone a step further. We are not dealing with anti-social behaviour; we are dealing with serious crime. The penalties to be imposed by the orders are house arrest, the freezing of assets—the answer to the noble Lord who spoke from the Conservative Benches a moment ago is that an order could contain such a provision—and a restriction on liberty, which is completely unacceptable unless there is a fair trial under Article 6.1.

The essential point is that there be in place the sort of safeguards that exist in a criminal trial. Those safeguards are, first, clarity: a person should know what he is charged with. The second safeguard is that what he is charged with has to be proved by the prosecution beyond reasonable doubt; the Minister has conceded that the orders can be made only if the activity complained of was proved beyond reasonable doubt. Thirdly, it is necessary in a criminal trial to produce evidence on a proper basis—not rumour, tittle-tattle or hearsay, but direct evidence. Fourthly, if the prosecuting side fails to reveal its hand and to disclose anything that might impinge on what it is doing, that is an abuse of process. All those safeguards are in place under the concept of a fair trial in Article 6.1.

The Government cannot hide by saying that this is a civil process. It is not a civil process. It imposes serious restrictions on liberty and that is the basis of the amendments that we have tabled. The answer to the question of the noble Viscount, Lord Bledisloe, of what is left of Part 1 if the amendments are passed, is nothing—and good riddance.

We have some sympathy for the amendments tabled by the noble Lord, Lord Dholakia, but at the same time we also have sympathy for the arguments put forward by the noble Viscount, Lord Bledisloe. If that sounds confusing, I have to say that the Government’s own position is somewhat muddled. The noble Baroness will recall that the noble Lord, Lord Thomas, intervened in her speech at Second Reading to ask whether an undertaking could be given to add the words “beyond reasonable doubt” to the Bill. That followed her statement that in effect it was not necessary because,

“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’”.—[Official Report, 7/2/07; col. 729.]

If that is the case, I fail to see why the noble Baroness resists actually having the words “beyond reasonable doubt” on the statute book.

When considering the first amendment, my noble friend made it clear that we are sceptical about the Government’s proposals and that at this stage all our amendments are designed to probe exactly what they intend and whether what they are doing is really a step too far in dealing with serious crime. For the same reason, we have some sympathy for this amendment in order to tease out exactly what the Government intend—whether they really believe that “beyond reasonable doubt” can be inferred, as the noble Baroness put it, as a result of recent case law, or whether it might be better to add the words to the Bill.

It is clear from the number of noble Lords and noble and learned Lords who have spoken that it might be advantageous if I contextualise where we are and how these orders will work. The orders are preventive measures, and perhaps I may explain why. Regrettably, and particularly with serious crime, serious criminals are generally those who will commit crimes again and again. I will check this, but the figures show that around 85 per cent of very serious criminals are recidivists. When they come out of prison, they go back to committing more crimes, in a way that is complex and difficult. The task is not only simply to catch and convict them of a particular crime, but also to prevent them committing further crimes, to interdict that criminal behaviour and to look at the methodology that they adopt and target a preventive order that makes it more difficult for them to perpetrate those or similar crimes again.

Does this mean that when a person is released from prison, he is to be put under house arrest because he has previously been convicted of a serious crime? When did that principle emerge in the whole history of English justice?

It absolutely does not mean that that would be the case. Let us take as an example a people trafficker. The individual may spend a considerable amount of time travelling to China and another country in Africa, from which they have trafficked individuals. It may be appropriate, when looking at that particular individual, to set a condition preventing them for a certain period from travelling to those two countries after they leave prison. Why should we do that? Because we know from their modus operandi that those are the areas in which they operate. The condition will act as a “preventer”, potentially, of serious activity.

It is important to look at how this clause is set out. The first thing to say is that these orders can be made only by the High Court in England and Wales, and there are appropriate provisions for courts of a similar nature in Northern Ireland. All noble Lords who have had the privilege of appearing before the High Court—the noble and learned Lords, Lord Lloyd of Berwick, Lord Mayhew and Lord Lyell, the noble Viscount, Lord Bledisloe, and the noble Lord, Lord Thomas of Gresford—will, I hope, affirm that the High Court is well seized of the application of the law in civil cases and is attuned to the different balances that there need to be with regard to different assertions made about proof in a civil standard. The High Court judges of this country have no difficulty in differentiating between those issues that are serious and therefore need the balance of probability heavily weighted before the judges are satisfied, and those that do not. That is a premise on which I hope we can all agree.

These orders are not simply to say whether an individual is guilty or not; they are preventive in nature. To take up the point made by the noble and learned Lord, Lord Lyell, the Strasbourg jurisprudence makes it clear that a measure will be held as criminal only if it is punitive. These measures are not punitive, but preventive; they are not an alternative to punishment through criminal law, but another string to the bow of the agency that is seeking to interdict crime. The punitive element comes into play only if there is a breach.

We need to be frank. If one has an injunction made by a civil court not to behave in a specific way and one breaches that injunction, there is a punitive element there, too—either contempt or some other provision to enforce the order made by the court. It has never been suggested in those circumstances that those are criminal in nature, albeit that they are punitive to enforce an order.

I thank the Minister, since she was focusing specifically on my point. Does she not agree that the court at Strasbourg will look at the substance of the matter and not the alleged form of it? If someone is under long-term house arrest, with a very serious loss of liberty in consequence, will the court not describe that as punitive?

I said in answer to the noble Lord, Lord Thomas, that it is not proposed that these issues should relate to house arrest. We are looking at a specific methodology adopted by a criminal, and we are asking the High Court to do two things. Under Clause 1(1)(a), to make an order the court has to be,

“satisfied that a person has been involved in serious crime (whether in England and Wales or elsewhere)”,

and it has to have,

“reasonable grounds to believe that the order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime in England and Wales”.

That enables the court to target the condition to address the mischief complained of. One of the difficulties with which the court will be faced is that, because the nature of the criminal activity that any particular individual may be involved in will differ, the tool that you will need to use with regard to criminal A may be significantly different from the tool you will need for criminal B, who may be engaged in a totally different type of crime. We must make sure that those provisions are fit for purpose.

I am sure that the Minister will come on to dealing with the basic problem here. ASBOs are preventive, as I am sure she will agree, in exactly the same way as these orders are intended to be. However, the House of Lords has unanimously decided that the standard of proof in those cases is the same as the criminal one. How can she get around that?

I do not propose to, but I should like to expand on why the civil standard is the most appropriate. The judgment in the McCann case did not convert anti-social behaviour orders into criminal orders. It said that they are civil orders, but when looking at the assertion which has to be made by the applicant, the test to be applied is virtually identical to the criminal standard because of the nature of the assertion made in those civil proceedings. It was not suggested that they were criminal in nature. I am sure that the noble and learned Lord read the judgment very carefully.

I confess to being confused by the noble Baroness’s remarks. At Second Reading, I thought that this part of the Bill was put forward on the basis that there were people whom you could not get convictions against because you could not get the evidence together, so you would have these orders against them. Now the noble Baroness has said that she is concerned about people who have been convicted but have come out of prison and may resume their behaviour. If that is the case, surely the sentencing court can be given the power to impose orders of this kind as a condition of release. Are we dealing with people who have been convicted and may go back to crime or with people known to have committed crime but who cannot be brought before the criminal courts successfully for lack of admissible evidence?

In one sense, we are dealing with both groups. We are dealing with groups of criminals who have previously been convicted of offences and whom we wish to prevent adopting a similar modus operandi and committing future crimes. We are also dealing with individuals—quite often third-party—used by those criminals to undertake legitimate activity for an iniquitous purpose. For example, there may be an arrangement whereby a criminal buys vehicles with false bottoms in which to transport people and/or drugs. The third party involved never sees the criminal or has an explicit conversation with that individual, but it is clear that the use to which the vehicles are being put, such as people-trafficking or drugs, is iniquitous. At present, there is a difficulty because such third parties will seek to rely on the fact that the activity is legal, commercial and cannot be interfered with. The orders would enable us to prevent that continuance in order to prevent serious crime being facilitated. That is why it is important.

I see the noble Lord, Lord Goodhart, getting to his feet but before he does I should like to come to the point made by the noble Lord, Lord Dholakia. I have tried for a number of minutes to get to the noble Lord’s question and to that of the noble and learned Lord, Lord Lloyd. If the Committee will indulge me, it might be easier if I deal with those before the noble Lord, Lord Goodhart, gets to his feet to interrogate on a further point.

The first limb of the test for obtaining an order is whether the person has been involved in serious crime. The burden of proof is on the relevant applicant authority. The standard of proof will be the civil standard but, given the seriousness of the conduct alleged, following McCann, the standard the court will expect to be reached is likely to be close to “beyond reasonable doubt”.

The second limb of the test for obtaining an order—this is a two-limbed clause—is whether the order will protect the public by preventing, restricting or disrupting the person’s involvement in serious crime. It is not a question of fact but one of judgment for the court. As a consequence, there is no burden of proof or any corresponding standard of proof. It is for the potential subject of the order—the respondent—to prove. The burden is on the respondent to prove that his actions were reasonable and should not form part of the court's decision on whether his actions facilitated or were likely to facilitate a serious offence, and the standard of proof will be the civil one. As the burden is on the respondent, we would expect the court to apply the standard of “on the balance of probabilities”.

There are parallels here with a criminal prosecution. In a criminal prosecution the burden of proving the offence is on the prosecution and the standard is “beyond reasonable doubt”. If the defendant raises a defence, it will usually be for him to prove the defence but the standard of proof would be lower than for the prosecution; namely, “on the balance of probabilities”. However, although in the context of burden and standard of proof there are parallels with a criminal prosecution, there are still important differences that mean that there are advantages to obtaining a civil order over a criminal prosecution. The two limbs would act together. We therefore say that this is a civil order; it is a preventive order. You still need McCann and you still need to understand how the two fit together—but within the civil not the criminal framework.

To return to the distinction that emerged in the discussion between the noble Viscount, Lord Bledisloe, and the Minister, are there not two quite different situations here? One is the situation where a serious crime prevention order is sought following a conviction, which will have been based on the criminal standard of proof, as that is all that is needed. That seems relatively straightforward and does not seem to raise any problems under Article 6 of the European convention. But you are in a different situation where there is a third party who has not been convicted of an offence and may not have committed one at all. In those circumstances, one needs to be a lot more careful about how the application for an order is handled. Unfortunately, it seems that the Bill does not recognise sufficiently the difference between those two situations.

I understand the concern raised by the noble Lord, Lord Goodhart; this causes us to look at the matter quite keenly. We think that the way in which we have phrased the provision meets those difficulties. The noble Lord will know that there are situations where the criminal standard, as he rightly says, will have been reached because the individual has been convicted, and we can deal with that. I am grateful to him for accepting the propriety of that position.

Anti-social behaviour orders were mentioned by many noble Lords, including the noble Lord, Lord Thomas of Gresford; but the way in which the breach of the football banning orders was dealt with is an interesting example of the effectiveness of taking preventive action. We were able to identify those who were likely to be engaged in activity, address the nature of their activity and stop them from carrying it out. There has been a dramatic reduction in offences as a result. Arrests for football-related offences were down by 7 per cent and there was 100 per cent compliance with the conditions of the football banning orders during the recent World Cup. We have all done better for it.

These orders will take two forms. Because of the limbs to which I referred, the first being the need to establish whether a serious crime has been committed and the second being on a matter of judgment, the civil standard has to apply. It is a civil preventive order. The civil courts are very used to balancing those two. The Serious Organised Crime Agency has made it absolutely clear that it will want to apply for those orders for those who have been engaged in serious criminal activity. It was suggested that there may have been 25 or 30 such orders. The agency has a spectrum of serious organised crime with which to deal, which means that it has to concentrate its efforts on the most serious criminals to try to disrupt the activity in a way that will reduce crime in our country. It has an enormous job on its hands and it believes that the orders will greatly assist the agency.

I hear what the noble Lord, Lord Thomas of Gresford, says, that it would be good to get rid of the whole of Part 1. That is not the view of those who are burdened, on our behalf, with trying to interdict the serious criminal activity being carried on in our country.

Can the Minister deal with the question that I put? It seems to me that such prohibitions, restrictions or requirements are very wide, almost open-ended and as near to a penalty as could be. Having heard the arguments on all sides, can she reassure the Committee that this particular proposal is human-rights proof according to the convention?

I believe it is. We have looked at this issue very carefully. I have not hesitated to agree with the concerns expressed by a number of noble Lords, both at Second Reading and today, that these orders have to be proportionate; they have to be clearly targeted and used with care and attention. For that reason, the High Court of England and Wales will be entrusted with this task. I know that noble Lords will have felt a great deal of confidence, as I have, in the rigour and vigour with which our courts have scrutinised these provisions. It will be for the court to determine whether either ground A or ground B has been made out. It will be for the Serious Organised Crime Agency, which asserts that that is necessary, to prove to the satisfaction of a High Court judge that the same is indeed necessary.

I believe that that will be quite a high benchmark for the agency to reach. If it reaches it, the court will have had to be satisfied that there are,

“reasonable grounds to believe that the order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime in England and Wales”.

If the applicant fails to satisfy the court to the appropriate standard, an order cannot be made.

I had not realised that there was a reverse burden of proof in subsection (1)(b). The Bill certainly does not make it clear that the onus is on the defendant to prove that there are no reasonable grounds to believe that the order will protect the public. I had read it on the assumption that it would be for the prosecution, or the authority that brought the matter before the High Court, to establish that there were reasonable grounds. Now, we hear something completely different and even more in breach of the European convention. We are not talking about stopping people going to football matches; we are talking about confining people to their homes, preventing them from using their assets—

We are not contemplating—it has been said now two or three times—confining people to their homes. It would be quite wrong to predicate this debate on that premise.

I respectfully point out that subsection (3) says that the order under the,

“section may contain … such prohibitions, restrictions or requirements … and such other terms … as the court considers appropriate”.

It does not prevent a house-arrest order being made. For example, in the case of a sex offender, the appropriate order might—rightly or wrongly—be to restrict them to their homes, if this legislation goes through. Another way is restricting them from dealing with their assets—their bank accounts and so on. A third way is to prevent them from travelling, whether to the next town or outside this country. Another way would be to impose curfews. The restrictions that can be imposed are absolutely open-ended. The noble Baroness has talked about tailoring; the judge will tailor the order to the particular problem that the defendant poses. This is incredible. The more we look at it, particularly with reverse burdens of proof, the more incredible it appears.

In support of what my noble friend has just said, the Minister should look at Clause 5(6) which says:

“The prohibitions, restrictions or requirements that may be imposed on individuals by serious crime prevention orders include prohibitions, restrictions or requirements in relation to an individual’s private dwelling (including, for example, prohibitions or restrictions on, or requirements in relation to, where an individual may reside)”.

If that is not draconian I wonder what is.

The noble Baroness should understand that we are teasing these things out to produce some sensible legislation, if it can be done in accordance with proper principle. She was kind enough to give the example of a Mr Big who in some way was going to finance lorries with false-bottomed compartments to be used for drug smuggling or people smuggling or whatever. Could she go on and indicate the kind of order that she would anticipate that a court might make in that case or of some other good example?

I have to be really careful because I have about 12 excellent examples in my mind, but I regret to tell the Committee that I understand that all of them are active cases. They would clearly indicate why we need this. I am grappling quickly to see whether I can come up with a different scenario, which would be similar but not identical to those that are under review. Let me try.

A scam could be run in relation to, for example, a school. People are being trafficked to this country, provision is being made for them to attend a school and they get visas on that basis, but no school exists. However, there are premises which have been secured by the Mr Big through which these people can obtain a visa. Third parties may be involved in providing PO box numbers and matters of that sort. You may wish to restrict the individual from obtaining a PO box number to facilitate that sort of fraud. You are looking at how the fraud or the criminal activity is being perpetrated and how you best disable that person from carrying out that fraud. You may therefore require a third party to notify the authorities if that individual were to obtain a PO box. That would not be a general clause but it may be a clause that the court would deem reasonable to apply in the circumstances.

I will now answer the noble Lord, Lord Goodhart. I was trying to say strongly that the noble Lord, Lord Thomas of Gresford, in his usual colourful way was almost saying that these orders will be made to keep people under house arrest unreasonably. I would say that each condition has to be reasonable and proportionate.

I come back to my noble and learned friend Lord Morris of Aberavon. If a condition was unreasonable or oppressive, it would not be consistent with the Human Rights Act. I would be greatly surprised if the court entrusted with this role would be minded to make such an order. The court knows all too well the balance that it would have to strike on reasonableness. It is therefore incredibly important that subsection (1)(b) says that the court,

“has reasonable grounds to believe that the order would protect the public by preventing, restricting or disrupting involvement”.

The person who asserted that there were such reasonable grounds would have to prove it on the balance of probabilities. As I said, it would not be a discernible and identifiable fact; it would be a matter of judgment to which the court would have to come after considering all the facts of the case. Having looked at the information provided, the court would have to make that assessment.

Ultimately, as that is quite a serious assertion, if the court felt that the evidence was of insufficient weight to satisfy the court that it should make an order, an order would not be made. We were therefore very careful when crafting the provision that the lower court would not be dealing with it, as we know how complex and difficult these issues are; it really has to be the High Court, which we believe can be entrusted appropriately and consistently to carry out that balancing exercise. Importantly, to the fore of every piece of legislation is the statement on compatibility with convention rights. The court will have to craft these orders so that they are compatible with the convention rights. The orders will have to be proportionate and just and the court will have to be satisfied that it would be proper to make them. These are not executive orders made by the serious organised crime office or the Government but orders sought from the court and given by the court.

Is the way in which the Bill will work as explained this afternoon compatible with the protection of offenders legislation? Surely the fact that an order has been given will imply previous offences. It will therefore have just as much effect as announcing that the individual who may be seeking high office in a company has a criminal record, in which case he would not be allowed to serve. We are not allowed to do that. Not even the Stock Exchange Council is allowed to indicate to shareholders the criminal record of someone seeking appointment as chairman. However, someone in that position could be subject to one of these orders. By that time it would be too late to take redress because the offence would already have occurred. There is a real problem here. There was a case 20 years ago in which it emerged that a man had run bordellos when he was younger. He later became a more ambitious businessman and went on to become chairman of a public company from which he took £385 million. It would have been much more useful to be allowed to name his previous offences than to bring an order against him.

I am not sure that I entirely understand the concern of the noble Lord, Lord James; but if he is saying that it would have been better to prevent the individual’s action, then I certainly agree. The legislation provides that if an individual had been involved in serious crime, it might be possible to apply to the court—particularly if that serious crime had been perpetrated through the iniquitous use and creation of businesses—for a prevention order concerning that activity.

I may be able to use a somewhat neutered example, if it assists your Lordships. I am trying to be very careful here. I was asked about the haulage company, and we discussed secret compartments. If we could impose a restriction on that haulage company, so that they would have to disclose their customers to the Serious Organised Crime Agency, or further information about those to whom they supplied their vehicles, that could be an order. From that information, the Serious Organised Crime Agency would then be able to follow those individuals, to see whether it would be lawful. These prevention orders can be used in a way that would be helpful to interdict serious crime in the future.

In answering my point, the Minister postulated two categories. First, she was concerned that Mr Big, who had been convicted, would go back to his evil ways. The second category is that of the auxiliary who had assisted by selling him dodgy vehicles with false bottoms. I thought the main purpose of Part 1 was to deal with Mr Very Big who is behind Mr Big, but against whom it was not possible to adduce admissible evidence in a criminal court to get him convicted. Is that person a target of this Bill and, if so, does that not completely disappear if Amendments Nos. 87 and 88 are passed? You will not be able to get at Mr Big—who I thought was Mr Very Big—which I thought was the Government’s main aim.

I agree with the noble Viscount, Lord Bledisloe, that if these amendments were passed, you would not be able to get at Mr Big, but there are a number of Mr Bigs who use a spectrum of smaller agencies in order to perpetrate their large, iniquitous crime. What we must do is twofold. First, we must try to target Mr Big and strip out those steps before one can get to him—those people in the middle. We also have to disable him from taking adventitious advantage of lawful activity which he then uses for his own iniquitous purpose. So you could have a series of people engaged in what on the surface is, individually, lawful activity, but is then used by the serious criminal to his advantage to perpetrate the crime. I gave the example of using PO box numbers and properties with others in a way that makes it very difficult.

The Minister has been patience personified and I wonder if I may stretch it a tiny bit longer by asking if she agrees that even Mr Big, assuming that he is properly identified as such, has his rights. I bring her back to the question put to her more than once by the noble and learned Lord, Lord Lloyd of Berwick, arising from the decision of the Judicial Committee of this House in McCann. In answer to his point she said that even the House of Lords Judicial Committee did not stipulate that an ASBO was a criminal order. I suggest that it does not matter what label you tie around his neck; what matters is the effect the order has upon the person who is made subject to it. If, in the case of an ASBO, the effect is held by the courts to be so serious as to warrant the criminal standard of proof, why is that not going to be their view if this amendment is not carried?

I must be doing very poorly indeed today. I apologise if I seem to have lacked the clarity that would enable noble Lords to better appreciate what I am trying to convey.

The noble Baroness gave the example of vehicles with false bottoms. The proposal to report orders to SOCA may not sound too serious but would result in the destruction of a person’s business. Given the choice of buying from someone and having your order reported to the police, or buying from someone else and having no such reporting, all their customers will naturally choose to move to an alternative supplier so that they do not have SOCA crawling all over them to see whether they are involved in people trafficking. Given a reasonable level of commercial sense in reporting, which seems to me commonplace, I reckon that it would take about three months for the company to die in those circumstances. The same would be true of many of the examples discussed last night.

As I understand it, facilitating can be entirely innocent. If you are supplying a substance that is used if not widely at least alternatively and which happens to have been used in a particular case for cutting drugs, and you are subject to the order whereby you have to tell the police every time you supply a customer with these materials, your legitimate business will disappear and you will be left entirely reliant on what you may not have known or understood at the time to be a criminal transaction. Effectively, these orders will destroy ordinary, legitimate businesses although they seem in themselves entirely reasonable.

I say to the noble Lord, Lord Thomas of Gresford, that while courts may initially be prepared to act like a couple of kings chasing each other round a chessboard, always trying to occupy the last square that the criminal was involved in, very soon they will find that it is reasonable to impose orders with some teeth that have some hope of anticipating the criminal’s next move. They are very likely to take the form of restricting someone’s movements or the time that they spend out of their house, which is a very easy, convenient and monitorable system. There is absolutely nothing in the Bill to prevent orders evolving in that direction.

I shall first deal with the points made by the noble Lord, Lord Lucas. As regards destroying businesses, we are grateful that SOCA finds that when it addresses legitimate businesses and apprises them of the difficulty that they may have inadvertently been engaged in, they are in the main wholly compliant and there is no difficulty with that at all. The difficulty arises—

Yes, but that is a private transaction between the police and the company, and I would expect a great degree of compliance. If, however, the information were published in an order that everybody could see—the individual would be branded as somebody who has been associating with criminals, as it were—it would be very different.

I can see the fear, but I am advised that it works thus; so far, there have only been difficulties where the business has failed to and/or refused to comply reasonably. For instance, there are those who say, “I am not my brother’s keeper: if I provide this service to an individual and they use it for nefarious practices—whether that is drug smuggling, people trafficking or anything else unbeknown to me—that is not my business”. It might also be claimed, “If I receive a great deal of money for converting a car, which is used for nefarious practices, that is not my business, because I am entitled to get as much money as I can for services that I supply”.

Where there is a refusal to take on board the consequence of that activity, it would be reasonable to apply for an order to ensure that that individual at least apprises the authorities of who the customers are. In some cases with which we are dealing, the business will say, “I don’t know the name of the person or receive any money in written form. I receive it in cash, and there is no way at all that I can help”. In those circumstances, the Serious Organised Crime Agency certainly thinks that impropriety needs to be addressed, if we are to curtail criminal activity.

It has been claimed that the conditions are oppressive. Noble Lords will know—we have been debating them a great deal regarding actions taken under SIAC—that if conditions are applied that amount to house arrest, a derogation from the Human Rights Act would be needed. We have no derogating orders in this country; therefore any condition attached by the court would have to be HRA-compliant; otherwise, I am sure, it would be struck down.

I can certainly write to noble Lords to give further and other such cases that we are dealing with and that may assist. Indeed, Sir Stephen Lander was able to explore many of those with us last night, but, as I have explained, it would not be proper for me to further explore them in the open forum of this Committee.

Without labouring the Article 6 point too much, is the thrust of the Minister’s case that some provisions in the Bill potentially contravene that article but that the Government seek that a High Court judge will apply the Bill so that it is compliant?

No, they are not in contravention because it is reasonable to suppose that the regime we have put in place would be operated by the High Court in a way that would comply with the Human Rights Act. I am therefore confident that these provisions, which are similar to how provisions were made for football banning orders or anti-social behaviour orders, are HRA-compliant.

I thank the Minister for her explanation, but she will have noted the concern of almost all the noble Lords who spoke. Our aim was to tease out as much information as we could from the Minister; I hope that she will reflect on today’s debate, which has taken just over an hour. We on this side are uncomfortable with what we have heard so far, but there will be an opportunity to come back to this matter on Report. I hope that that will be a more challenging time for the Minister. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 3:

Does the noble Lord accept that the amendment is totally incompatible with those that we have just debated? The judge can make an order only if he has been satisfied beyond reasonable doubt on evidence admissible in a criminal trial that the man in question has been guilty of the criminal offence. If he is satisfied, he cannot be satisfied that it is not possible to prosecute the person unless the individual is outside the jurisdiction. I do not think an order of this kind can be made against somebody not within the jurisdiction, but the two cannot stand together. A judge cannot say that he is satisfied beyond—

Does the noble Viscount not accept that, if these orders are to be imposed on people who have served their sentence, this amendment is completely compatible with the previous one?

Yes, I accept that, but is it accepted that these orders can only be used against somebody who has already been prosecuted and served his penalty and invoked as a further punishment? If so, most of their purpose has gone. Is it accepted that that is the only circumstance in which you could satisfy Amendments Nos. 2, 87, 88 and 3?

I do not know whether the noble Lord, Lord Dholakia wants to answer that.

No.

There are some internal inconsistencies in these amendments, but I took it that this amendment and the earlier one were probing, so maybe the inconsistencies can be viewed in that context. The amendments reflect a fundamental misunderstanding of the purposes behind the Bill and how it will work in practice. Nothing proposed in legislation alters the role of the applicant authorities in deciding whether prosecution should be sought against an individual. The Government are committed to ensuring that those who commit serious crimes are caught and punished, and it is very clear from discussing these matters with the Serious Organised Crime Agency that it shares that view. Part of its business is to take out and restrict the activity of serious criminals and make it more difficult for them to perpetrate their crimes.

Nothing in these orders is to do with punishment. The purpose, as I have tried to make clear in earlier debates, is preventative, and Amendments Nos. 3 and 5 would mean that, before being able to consider an order to prevent future harm to the public, the applicant authorities would have to seek prosecutions against the persons concerned for every crime they had ever committed. Your Lordships will know that in making decisions the prosecution may often decide that a particular crime could be prosecuted but in the public interest it would not be appropriate under the circumstances.

This judgment process remains unchanged by this Bill. However, irrespective of whether a prosecution has been or will be sought, the Bill leaves it open to the applicant authority to seek to demonstrate to the High Court that a person has been involved in serious crime and that the proposed terms of an order will prevent, restrict or disrupt involvement in serious crime. One knows that on occasion some very complex cases take a very long time to come to court, and it may be necessary and appropriate for the agency to apply to the court in the interim for orders to restrict the activity that the criminal could participate in while that time frame prevails. The decision to prosecute an individual and the decision to apply for an order to prevent harm to the public are two completely separate issues based on different criteria. For that reason it would be inappropriate to restrict the ability of the High Court to impose a reasonable and proportionate means of preventing harm simply because a prosecution for an offence has not been sought for a legitimate reason.

I have some sympathy with the intention behind Amendment No. 9. It sets out expressly that the making of an order is without prejudice to any criminal investigation and that, once an order has been made, the investigation of the subject of an order must continue to be pursued. Appropriate prosecution of the people who have committed serious crimes will always be desirable, and these orders do not rule out that possibility.

As I said, the orders will be preventive and will be used as part of the criminal lifetime management of those engaged in serious crime. They may prevent harm while investigations are ongoing or they may help to stop a person re-engaging in serious crime after they have been convicted and have served a sentence. At Second Reading, the noble Lord, Lord Dear, gave us a very graphic example of some of those cases and of how long they can take to come to fruition and go before the courts.

The making of an order will not rule out the possibility of a criminal investigation continuing but we do not believe that there is any need to say so expressly, as in paragraph (a) of the amendment. As for paragraph (b), we do not think that it is appropriate to require law enforcement to continue to pursue an investigation. We believe that it is more appropriate to give law enforcement officials discretion to manage each case based on its facts. For those reasons, I hope that the noble Lord will see that there is great sense in approaching this matter in the way that I have just described.

Does the Minister agree that, if a prosecution is pending or contemplated, a person should be charged? Under the requirements of a serious crime prevention order, the court has to be satisfied that a person has been involved in a serious crime. If a person is charged, he is let out on bail pending the trial. Are there any conditions in Clause 5(3), for example, that could not be imposed on a bail order?

There may be orders referable to individuals’ business dealings; for instance, providing that they comply with or give information to Her Majesty’s Customs and Excise or SOCA. That is not a usual bail condition. It would be much easier for the court—and, one imagines, more proportionate, particularly if we suggest that there is some interference with the individual’s business activity—if the Serious Organised Crime Agency were put to the trouble of going to a High Court judge, who could balance these issues and see whether it was a proportionate and reasonable response. The provision does not mean that some of these conditions could not be bail conditions, because they could, but some of them might be better placed, and the response might be more proportionate, if they were made under a High Court judge’s determination, particularly in relation to business issues, which could be better balanced.

These are tools. By creating these orders, we will put another tool in the prosecution’s tool box, but the provision does not mean that all the tools have to be used in any given case. The most judicious judgment will have to be made about which tool needs to be used in any individual case with which the Serious Organised Crime Agency is dealing.

I thank the Minister for her explanation. I also thank the noble Viscount, Lord Bledisloe, for his observations. We have an opportunity to look again at what revisions to the amendments might be necessary and at whether our concerns can be expressed differently. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 4 and 5 not moved.]

moved Amendment No. 6:

Will the Minister in her reply undertake to deal with the provisions in Clause 5(7), which, on several readings, I find extremely confusing? Incidentally—and this is important in the light of our earlier discussions— that subsection includes provision conferring discretion on law enforcement officers to impose “prohibitions, restrictions or requirements”. Law enforcement officers are defined to include, for example,

“a member of the Serious Fraud Office”.

First, taking up the final point made by the noble and learned Lord, Lord Mayhew, I should make it clear for the whole of our debate that the Serious Organised Crime Agency is not the only agency that can apply for the orders. Subsection (8) sets out all the individuals who are covered by what “a law enforcement officer” means.

I turn to the first point made by the noble Baroness. I understand what she says about the amendments. If one looks at how anti-social behaviour orders have developed—many of them are, as she will know, made by a lower court—the High Court has had to direct and inform how they have been expressed because, on occasion, they have lacked the acuity that we need. I think that that is the import of her amendment.

That is why we chose the High Court as being the most appropriate court. As the noble Baroness will know, the authority that seeks to make the orders will have to file evidence and satisfy the court that the order that it seeks is justified on the evidence that it produces; it will have to satisfy the court that the order is right and proper, and consistent with the provisions not only of the Bill but of the Human Rights Act. In order to make a valid order, the court would have to express that order with sufficient clarity so that it can be enforced if breach is alleged.

The process and the rules that apply to proceedings in the High Court on orders made by the High Court would all apply to such applications. We anticipate that the court would be obliged to give clear reasoning and explain the basis on which it made the order. As the noble Baroness knows, we have provided for a right of appeal, which would not be possible without knowing precisely the reasons for granting the order and the basis on which the court asserted that it was satisfied that the two limbs of Clause 1 were made out.

I understand the anxieties of the noble Baroness, but I do not believe that those anxieties are well founded. The court would be expected to set out the terms of the order. All the terms of the order must be set out on its face for it to be capable of being enforced. The only exception will be if the order relates to provision of information. Then, the court may leave the details of how the information is to be provided to the discretion of the law enforcement officer. That is in Clause 5(7). As the noble and learned Lord, Lord Mayhew, said, that subsection is rather broader at the moment, but we shall return to that issue. It may be appropriate to amend it, subsequent to our discussion, to give it greater acuity than it has at present.

Just as with any other injunction, the High Court judge will have to set out on its face the person to whom the order relates, the nature of the restriction made and the terms with which the individual must comply. I imagine that it will be possible to challenge an order that did not comply with those ordinary rules.

I hope that that gives the noble Baroness the reassurance that she seeks. I agree with her that it is very important, when dealing with orders of this nature, to be clear about the terms and to be clear with a person who may be subjected to it, so that there is no difficulty or misunderstanding about compliance. I hope that what I have said will give the noble Baroness the reassurance that she seeks.

I am grateful to the Minister. She has taken me some way forward to seeing whether we might be able to resolve our concerns. I am grateful to my noble and learned friend Lord Mayhew of Twysden for referring us forward to Clause 5(7). I have tabled Amendments Nos. 60 and 62 on that matter; the former seeks to leave out subsection (7) and the latter leaves out the reference to the power of the law officers to determine at a later stage what prohibitions might be imposed on a person. The way in which the Minister has addressed my noble and learned friend’s comments today has given me some thoughts about how we might approach Amendment No. 60 when we reach it. There may be some way in which we can achieve a resolution, whereas previously I was concerned that we might not, so that has been constructive.

I agree with the noble Baroness that we are all trying to ensure that the provision is watertight so that there will be compliance—otherwise everyone’s time is wasted and the person still goes on to participate in serious crime, which none of us wishes. I am grateful to her for setting out how she sees the court’s role in those terms. It is helpful to have that on the record because, if there is not sufficient clarity in the terms of the order as announced in the court, breach cannot be pursued. That is in no one’s interests, so I look forward to seeing with perhaps different eyes than I would otherwise the arguments that we might be able to adduce when we reach Amendments Nos. 60 and 62, so that perhaps we can achieve a resolution on those matters. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 7:

I thank the noble Baroness for the way in which she spoke to her amendment. This goes back to some of the comments that I made on earlier amendments. We are trying to give the courts a degree of flexibility so that they can tailor an order to best fit the circumstances of the case under consideration. We have been conscious that technology moves quickly and we want the legislation to stand the test of time, so we think that judicial flexibility, which would be limited by virtue of the reasonableness of the provisions and compliance with the Human Rights Act, would be an important advantage.

Clause 1(3) and the corresponding provision in Clause 19 allow the courts to impose positive as well as negative obligations on the subject of the order. Under an order, a person can be required to take action as well as not to take action, but always subject to the requirement that the terms must be preventive rather than punitive. We do not wish to see these provisions restricted in the way proposed because we do not want the courts to refuse to make an order simply because a particular term cannot be described as a prohibition, a restriction or a requirement. Rather, the courts should be able to impose those terms that they consider will prevent harm. They will have to justify and explain them, and make sure that they are human rights compatible, that they are not oppressive and that they are proportionate, but we believe that they should be entrusted with the opportunity.

I hope that having heard my response, the noble Baroness will be content that these provisions do not cause the worry about which she might be concerned.

This may be another example of “yes but no but yes”, but perhaps it is a yes. I really sought to ask what else, if we have in Clause 1(3)(a) “prohibitions, restrictions or requirements”, there is that the courts might wish a person to do under an order. The noble Baroness says that the provision in paragraph (b), “such other terms”, could mean that the courts would impose positive obligations. If one accepts the idea of a serious crime prevention order, a positive obligation could in itself be an appropriate measure. On the other hand, in my thinking a positive obligation is a requirement to do something. This is certainly something that I shall want to think about because I am not sure whether the paragraph adds anything to the Bill. However, if it does no damage, I shall not be concerned. At this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 8:

We on these Benches wholly support the amendment. The use of the expression “examples” introduces an entirely vague concept, and the net result of Clause 1 as it stands in relation to Clause 5 is that it gives the judge complete control over any type of restriction, requirement or prohibition that he chooses to impose. That is not right. I have the highest regard for High Court judges, of course, but it is not right to give such power over the individual to a judge in such circumstances. Then there are simply set out examples, which of course include house arrest—the Minister looks upset at that, but why doesn’t she face it? It is house arrest to restrict the use of any premises by an individual and to restrict an individual’s travel. This provision can be used in that way in what a judge thinks is an appropriate case. If the Minister does not like emotive expressions, I am sorry, but that is what it means.

I am concerned by the noble Lord’s insistence on “house arrest” because the Committee knows that the courts of our country will not allow that to occur, as house arrest would be disproportionate. Indeed, it would be argued that it was an improper infringement on the liberty of the individual and contrary to the provisions of the Human Rights Act.

We currently restrict a whole series of individuals’ activities. The noble Lord, Lord Thomas, mentioned one earlier: we restrict, with propriety, the activities of known paedophiles, who are on a register. We require them to live at a certain address and comply with certain conditions because it is necessary so to do for the prevention of injury to others, particularly children. It is not suggested that that interference with liberty is disproportionate to the risk and danger that they pose, and I do not believe that any of us could, with propriety, refer to that as “house arrest”. If it were, we would have to derogate from the Human Rights Act, which we do not intend to do.

With the greatest respect to the Minister, we know that control orders restrict people to their houses. People are kept with their families in a flat and are not allowed to move outside it. That is house arrest. We have it already, under legislation passed by this Government. This provision is a further extension of the possibility of house arrest.

The Minister refers to paedophiles, because they are the demons in our society. The Bill does not require that it be proved beyond reasonable doubt, so she told us only an hour or two ago, that they are paedophiles for house arrest to be imposed. That is the authoritarian nature of this Bill, which we keep coming back to.

I do not think that it will advantage the Committee for us to rerun our debate, which lasted over an hour. Perhaps I can import into this debate the comments that I made in the last; it may assist the Committee if we deal with it in that way.

I turn to the amendment of the noble Baroness, Lady Anelay. She invites us to turn the list in Clause 5 into an exhaustive one. I pray in aid the comments that I made on the two previous amendments about flexibility and the need for acuity in crafting conditions that go to the root and the nature of the individual criminal activity that these orders are designed to prevent. On each occasion, they will differ: the way in which one frames order A will differ from the way in which one frames order B. Any terms imposed by an order would have to be compatible with the convention rights, as required by the Human Rights Act 1998.

The provisions are also subject to numerous safeguards in Clauses 6 to 15. For example, Clause 11 provides that a person does not have to give oral answers to questions. The flexibility in Clause 5 allows a targeted order to deal with particular circumstances.

With regard to the examples that we gave earlier, a business could be involved in obtaining mailshots. People are invited to participate in a competition that is not real. In practice, the prizes that are offered do not exist or, if they are offered, are worthless. There is no commercial rationale for the operation; its sole purpose—obtaining the mailshots—is to identify likely future candidates for advanced fee fraud. If the perpetrator then sells or obtains a mailshot elsewhere, the law enforcement officer can apply for a prevention order prohibiting that individual from engaging in any activity involving large-scale mailshots.

We know that scams of this nature are taking place up and down our country; while many of them are perpetrated by individuals who are not in this jurisdiction, the mailshots take place here. There have been tragic cases of individuals who have lost their entire life savings as a result. As a preventive measure, it would be important to target the serious organised crime, in that instance by obtaining an order to disable that particular individual from appropriating money in that way. The irony is that, had we given no example of the nature of the activity that we wish to interdict, it could have been said that this is even broader, but we have tried to give the framework within which these orders should be set. However, we do not propose that they should be exhaustive.

I know that the noble Baroness is a practical individual; she always looks to see what the mischief is and how to frame the response to deal with it. I am confident that neither she nor Members of the Committee would like to disable the court from responding in a proportionate way that was likely to interdict crime that is serious and so invidious and detrimental to the citizens of this country. That is why we have done it in that way; we hope that the framework gives a proper balance between the acuity and the flexibility that one needs. I hope that, given that explanation, the noble Baroness will be slightly happier than she was before I responded.

I am getting more and more sympathetic to the Minister personally in her struggle to explain why the Bill is necessary. She has convinced me of the need for something that can be targeted in these cases. I do not go along with what we are being told by Liberal Democrat Members that, because the Bill is vague, we cannot have anything. I do not think that that is the case. But it is extraordinarily vague to leave to a judge of the High Court a decision about how to push this or that person about, Parliament not having agreed that that could happen. That is what we have got. The examples do not include parameters. That is the trouble and that is what my noble friend is trying to say.

It is Parliament’s duty to ensure that the courts do what it decides and do not do what it does not decide. That is what we are here for, as I understand it, and I have always thought that it was an important and noble role. But it is not our job to say that we need any sort of an order to be possible because the variety of needs will be so great, and that we must let the judges decide everything. That is the trouble. I think that that is what Liberty is saying to us. That organisation has written an extraordinary document and to my mind has taken a lot of trouble to point out what the problems are from the point of view of lawyers. The ordinary citizen wants to know that Parliament is giving judges parameters, but there are none in this case.

I absolutely understand the nature of the concerns of the noble Baroness, Lady Carnegy of Lour, and thank her for her sympathy. But we have the examples in the Bill to try to do what the noble Baroness suggests—set the parameters. We are fortunate because the High Court of Justice in our country has, in its inherent jurisdiction, long experience of doing this sort of thing. For example, in wardship, the High Court can do anything to protect a minor from the wrongful removal from a jurisdiction or from harm. In the recent Children Act 2004, we retain—I think in Section 100—the ability to make an order in wardship if all else fails. We have entrusted in the inherent jurisdiction of the High Court the ability for a High Court judge to make proportionate orders that seem to be right in the circumstances of that particular case.

So this is not by any means unknown, albeit the noble Baroness is right that in more recent legislation we have tried to set out clear boundaries within which the court should operate and clear rules about how they should apply the tests that we have given them. That is why we have provided the tests in Clause 1 and the parameters which we have just been discussing in this amendment. In terms of proportionality, we also have the Human Rights Act 1998 as a further constraint on their operation. Of course, a court would not be able to make an order that was unreasonable or inconsistent with the Human Rights Act. If they did so, the Court of Appeal and/or the Judicial Committee of the House could strike down any such order. We know from our most recent jurisprudence that the court has been very vigorous in being guardians of the Human Rights Act and making sure that that which is done is compliant.

I understand the noble Baroness's concerns, but we believe that we have got the balance about right on this occasion. We must have a little flexibility. Otherwise, to put it colloquially, we will not be able to catch the pernicious crooks fairly.

I am grateful to my noble friend Lady Carnegy of Lour because she highlighted exactly my concern that it is a case of ensuring that there are parameters and that Parliament takes proper responsibility for setting the boundaries within which the judiciary then acts in specific cases. I am concerned that there is so much flexibility and lack of clarity that there could be problems. However, I agree entirely with what the Minister says. There are ways in which one can have safeguards in other parts of the Bill. Therefore, my paving amendment was purposely in Clause 1 because I accept the Minister's argument that Clause 1 of itself does impose on the courts parameters that set the scene before they get to Clause 5. I appreciate that I will always have to look at Clause 5 within the terms of what steps the court has had to go through before it reaches that.

moved Amendment No. 10:

There can be no doubt at all that trafficking is a great social evil. I am grateful to the noble Lord, Lord Dholakia, for bringing this matter forward in a separate amendment which highlights its importance. Research reveals that between 700,000 and 2 million women and children are trafficked across international borders every year; 60 per cent of illegal immigrants resident in this country arrived here illegally and the majority in the back of a lorry. The noble Baroness has already referred to the difficulty about investigating that and the fact that some lorries are built specifically to accommodate such human cargo. There were an estimated 4,000 victims of trafficking for prostitution in the United Kingdom during 2003 and we know that there were 30 convictions for trafficking offences between 2004 and 2006. To date, as the noble Lord, Lord Dholakia, has said, as far as we are aware, no convictions have been achieved for trafficking for labour exploitation.

This is a serious matter and one to which the House will return tomorrow during a debate on International Women's Day. My noble friend Lady Morris of Bolton will lead for us on that day. I know that she intends to look very carefully at these issues.

We are very glad that, after some hesitation, the Government agreed to sign up to the convention on trafficking—the European convention—and we hope that ratification will take place as soon as humanly possible. I would be grateful if the noble Baroness were able to give us some updated information on that. What progress has been made towards ratification? Perhaps she could comment on the results of her 2006 consultation paper, Tackling Human Trafficking, and the work undertaken by the Human Trafficking Centre, opened in Sheffield last October. I have a reason for asking those questions within the context of this very helpful amendment.

This morning, I heard on the radio a news item which said that in this year of commemorating—I hate to think of it as celebrating—the abolition of slavery, and slavery should never have happened in this country, the Metropolitan Police are launching a specialist trafficking team. I thought that sounded very helpful. I was already aware of Operation Maxim, which is the Metropolitan Police Service’s partnership with the UK Immigration Service, the Identity and Passport Service and the Crown Prosecution Service, targeting organised immigration crime across London. They specifically target human trafficking. I knew about that, but this appeared to be a new initiative.

Afterwards, I tried to find out the details and I went on the Metropolitan Police website and found nothing; I went on to the BBC information website—the BBC had put out the story—and found nothing; so I was becoming more and more confused. The story was repeated, so I knew the confusion was not in my head, thank goodness. I would be grateful to know whether the Minister has any information to assist the Committee on the remit of that trafficking team and how it might interact with SOCA. That will be important against the background of the briefing given to noble Lords last night. How would the roles of the team and SOCA differ or complement each other? Will the focus of the Metropolitan Police team be on seeking criminal prosecutions or on identifying those cases where it might be more appropriate to seek a serious crime prevention order?

I now do my elliptical loop and come back to my first comments about the scale of the trafficking problems in this country particularly and worldwide, and the comparative lack of success of prosecutions in the criminal courts and therefore the potential for the use of a serious crime prevention order in resolving some of the problems. The noble Baroness has argued that we should accept this new “tool”, as she calls it, because it could solve problems that we do not seem able to solve at the moment. There may be an argument in the case of trafficking that an order could be a useful tool. I still need to be persuaded but it is one of the areas where there could be a valid argument.

It is important that we know the status of the Government’s work with regard to trafficking and the ratification of the convention, as well as the status of the new trafficking team and how that is going to relate to SOCA. Is its main focus going to be on criminal prosecution or is it going to be moved away so that in the future it will focus on applying for a serious crime prevention order?

I am grateful to the noble Baroness, Lady Anelay, for giving us some figures about trafficking. Of course, they can only be indicative ones because there is no precise knowledge. However, they point clearly to the major scale of this totally unacceptable practice. I mention that to the best of my knowledge there have been approximately 30 successful prosecutions of traffickers so far. Have there additionally been some unsuccessful cases?

When she comes to reply could the noble Baroness also indicate when Operation Pentameter is likely to be repeated? I hope that it will be very soon this year. It was successful as far as it went first time round.

Ratification of the convention has been mentioned. My strong hope is that signing will happen before the end of March and ratification will follow as soon as practically possible thereafter. I have three Questions for Written Answer down about what changes in legislation will be necessary before we can ratify the convention; I hope we can have a positive answer about that.

Finally, how do we deal with traffickers? Will successful action against traffickers count towards the targets of the various police services and towards the efficiency points which they earn by the work that they do? As to the amendment, like the noble Lord, Lord Dholakia, I would prefer to see traffickers being prosecuted rather than hobbled or to some extent interrupted in their activities by these orders. I look forward to the reply.

I support the points made by my noble friend, Baroness Anelay, particularly in the context of trafficking and lorry drivers. The Minister will be aware of the case of Roth v the Home Office in which the 2001 Act crashed. The provisions for the confiscation of lorries, for demand for immediate payment of £2,000, and for a complete change in the rules of criminal procedure—denying the normal rules of procedure in circumstances which plainly involved a criminal penalty—meant that the Act was struck down. This was all in relation to the problem of illegal immigrants and the use and abuse of lorries coming into this country. The Government tried to control that and they were right to try, but it was not done in the right way. It was not proportionate or compliant with the Strasbourg court. We wish the Bill to succeed in the sense that we all wish to combat effectively this type of serious crime. We are testing it because we do not want to make those same serious mistakes again.

With this area in particular, these orders should never be seen as a substitute for prosecution. Prosecution has to be explored with vigour. We are much better now at interdicting traffickers, but there is a view that we are still not as good as we would like to be and there is more to do. We are developing a UK action plan of human trafficking which will give us an end-to-end strategy to combat all forms of this evil crime. I was comforted that the noble Lord, Lord Dholakia, and the noble Baroness mentioned in particular those who are trafficked not for the sex trade but to be abused in employment. Illegal working operations can be as pernicious as any others. I was pleased to note that both noble Lords mentioned that, as did the noble Lord, Lord Hylton, who has raised the issue on a number of occasions.

The plan will include chapters on prevention, enforcement and victim support and we are aiming to publish it in the next month or two. The UK Human Trafficking Centre was established, as I think the noble Lord, Lord Dholakia, mentioned, in autumn last year, which supports the overarching aim of moving the United Kingdom to a leading position in relation to the prevention and investigation of trafficking of human beings. It will be the central point for the development of police expertise and operational co-ordination.

This morning, the Metropolitan Police launched a dedicated team to deal with human trafficking, as the noble Baroness indicated. As well as targeting the criminal networks, the key objectives of the team are to improve knowledge and understanding of trafficking; to give advice and support to other police units involved in investigating trafficking; and to work with partners and communities in seeking to improve the Metropolitan Police’s response to trafficking.

A specific team has been set up because of a real recognition of not only the pernicious nature of the offence but the need to do something aggressive in response to it. The team will work diligently with the Serious Organised Crime Agency and the other agencies seeking to interdict this crime. In order to identify who is doing it, a number of agencies often work together. Sometimes they follow the money, sometimes the people and sometimes the activity. I can assure noble Lords that that will continue.

As noble Lords have often heard me say, the United Kingdom is already compliant with the convention provisions on enforcement and the criminalisation of trafficking. But the main concern about the signature to the convention has been the potential impact on the provisions of a reflection and residence period for victims and the requirement to provide support, and specifically the risk that irregular migrants picked up during the course of illegal working operations will make false claims to victim status in order to frustrate removal.

At the moment, the United Kingdom operates a case-by-case approach to victims of trafficking, who are removable from the United Kingdom. We will pursue reparation of an individual only if it is considered appropriate to do so. The victims of trafficking who are accepted by the Home Office-funded Poppy Project, about which we have spoken on a number of occasions, will have removal action held in abeyance for about four weeks while they give consideration to whether they wish to remain and assist authorities. If they do remain, they are not removed by the Poppy system.

Much to the delight of many—I confess, including myself—we have been able to move forward on signing the convention. That is being dealt with as expeditiously as possible. As the noble Lord, Lord Hylton, will know, the modus operandi usually adopted by us, and indeed by other Governments before us, is to ready ourselves for signature so that ratification can take place as soon thereafter as reasonably practicable. I can certainly assure noble Lords that, my right honourable friend the Prime Minister having given the indication that we intend to sign and then ratify, everything is being done to expedite that and to make it possible to answer as soon as possible. I am aware that the noble Lord has, as he says, three Questions for Written Answer. As I understand it, the detailed work necessary to respond to him is being undertaken. We will give a full reply as soon as possible.

I understand why we have taken a circuitous route in this debate by which we have had a mini-debate on trafficking. But I say to the noble Lord, Lord Dholakia, that these prevention orders are not a substitute for prosecution; they are simply another way of preventing the continuance of an activity, particularly if we have identified those who have trafficked people before. We wish to interdict and prevent future trafficking. I am thinking not only of the victims whom we are able to release on that one occasion. Regrettably, as I indicated, there are those who engage almost continually in this practice, and we have to try to stop them. For the victims, prevention can be so much better than cure.

I listened with interest and gratitude to what the noble Baroness, Lady Anelay, said about her sympathy on these matters. I hope that I have said enough to assure the noble and learned Lord, Lord Lyell, that these matters are being vigorously looked at. The action plan, when it comes out, will cover prevention, what we are doing, what we are co-ordinating and how it will be delivered. We believe that there has been significant improvement in performance.

Can the noble Baroness clarify whether, for example, the physical structures and so on that assist in monitoring lorries at Calais have improved? Six years ago, the Government, in about their fourth year of power, took draconian action to remove rights and liberties, which has been thoroughly unsuccessful. They knew very well then that they would spend very little money on the kinds of technical assistance that would have been of real value. Now, in the 10th year of their administration, what has actually happened?

I think that heat-seeking equipment is the answer that the noble and learned Lord, Lord Lyell, is searching for.

We have heat-seeking equipment, which I think has been available since early 2000, and sniffer dogs. I am happy to write to the noble and learned Lord. I did not expect that we would have a full debate on the details of trafficking, but I commend the noble Lord, Lord Dholakia, and his able assistant the noble Baroness, Lady Anelay, for enabling us to do so. I have to say that I am complicit, too, because I could have simply not replied.

The importance of this work is clear. I remind the Committee that we have put in place the procedure of obliging authorities to go to the High Court to obtain such an order to take into account the fact that the orders have to be proportionate and reasonable and to avoid the difficulty that arose on the previous occasion. We think that this is a good way of delivering on that. I am happy to write further on this to the noble and learned Lord, Lord Lyell.

Perhaps we can now move on to the next amendment. We have had a debate that has lasted 24 minutes.

I thank the Minister for her assurance that prosecution will be at the heart of this matter. Perhaps I may also point out that the noble Baroness, Lady Anelay, is not an assistant but very much a partner in this particular crime. I think that we have always spoken together on such issues in this House.

I am delighted to receive the Minister’s assurance. More importantly, we accept that there may be occasions when the lesser matter could be more appropriately linked. A clear message must go out from the Committee that such heinous crimes will not be tolerated and that people will be punished with the stiffest possible penalties. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 1 shall stand part of the Bill?

Although my name is not down to the proposal that Clause 1 should not stand part of the Bill, my noble friend Lord Dholakia has suggested that I might be the person to speak to it. Before I begin, I should do two things. First, I declare an interest: I am the chair of the council of Justice, an organisation which submitted a briefing on the Second Reading of the Bill, although it has not as yet submitted a further brief on the Committee stage. Secondly, I speak on this occasion for myself and not on behalf of my party. It is an important distinction to make on this occasion because I shall be making certain suggestions which have arisen in my mind as a result of the meeting that the Minister arranged last night. I have therefore not had a chance to clear them properly with my noble friend.

I spoke on this part of the Bill on Second Reading. As I said then, and say again today, it is no answer to the problem that serious crime prevention orders will be made by judges who will act reasonably. We should not create laws that create scope for injustice and rely on the judiciary to apply those laws with moderation. I believe that Part 1 as it stands is incompatible with the rule of law and with the basic principles of our criminal justice system. However, I want to be constructive. I understand the objectives at which the Government are aiming and I want to see whether it is possible to suggest acceptable ways in which those objectives could be achieved.

I want to clarify my understanding of what Part 1 achieves. It seems that we are all agreed that the first part of it is intended for those who have committed a serious crime and are now at liberty, for one reason or another. It will enable the court, without a great deal of trouble, to have their feet nailed to the floor so that they cannot carry on whatever activity the court thinks they are likely to participate in. Like the noble Lord, Lord Goodhart, I do not have a problem with that—subject to a few safeguards. My difficulty, particularly after the answer the Minister gave me a few moments ago, is with the effects on those who have facilitated crime because of the way the Bill is drafted. There could be an entirely innocent action but with devastating consequences.

The Bill is to be used to take out those facilitators who genuinely are criminal because they will not comply with anything and they will then be run down, which I do not particularly object to; but those who merely have their facilities used by criminals unwittingly will be turned into informers on the penalty of losing their business. That is going about things in a very heavy-handed fashion. There is a strong threat if somebody comes to me and says, “We are entitled to take out one of these orders against you, unless you provide us with this information”. It compels businesses, in particular, but also, I imagine, individuals who are scraping a living on the fringes of the underworld to provide the police with all the information that they desire. As I understand it, that has not been our practice previously. The range of penalties under Clause 5 are extreme when applied to those sorts of people, although I can see that they are appropriate for the hardened criminal. I address my own Front Bench as much as anyone else in questioning whether this is really the right way to treat our citizens.

Before the noble Baroness responds to the noble Lord, Lord Goodhart, I remind her of the position of noble Lords on these Benches. As my noble friend and I made clear, we are sceptical about the prospects of success of serious crime prevention orders. As the Minister made clear, and as my noble friend made clear at Second Reading, we believe that the real answer in the end has to be successful prosecution and that that ought to be pursued. Having said that, like the noble Lord, Lord Goodhart, we understand what the Government want to achieve. Certainly, at this stage we are not prepared to strike out the whole of Part 1 or even Clauses 1 to 5 and Schedules 1 and 2. We shall want to look very carefully at what the noble Baroness is about to say, particularly in response to our second amendment where we debated, to some extent, the general principle behind Clause 1.

Before we make any final decision, we will want to look at the Government’s response to further amendments that we have tabled to the rest of Part 1 and to Schedules 1 and 2. My noble friend has tabled amendments to explore why some crimes are included in Schedule 1 and others are not. The noble Baroness may remember that we had some sport on that at Second Reading. I am still intrigued as to why it is even necessary to have Schedule 1 at all when one bears in mind that Clause 2(2)(b) makes it clear that the courts can decide to add anything else they want to Schedule 1. To that extent, Schedule 1 seems to be a waste of space. No doubt the noble Baroness will respond to that at the appropriate time. For the moment I remind her that we are sceptical about the prospects of success and we need convincing.

I thank the noble Lord, Lord Henley, for his helpful and supportive scepticism. I understand the anxiety that the noble Lord, Lord Goodhart, expressed. I thank him for accepting that these orders could have great benefit in relation to those who have been properly convicted of an offence. He puts his finger on a matter on which a number of noble Lords said they had great anxiety: those cases where there may not have been a conviction but where criminal activity is going on and an order is applied for. I almost tremble to say it but I think that we on this side may be in danger of becoming more like Liberals on this issue than the noble Lord, as we seek to prevent the unnecessary criminalisation of individuals but to stop the activity that is complained of.

I absolutely understand the anxiety of the noble Lord, Lord Lucas. He rightly says that it would be iniquitous if ordinary business people going about their legitimate business with no idea at all that they were being used by serious criminals in an inappropriate and iniquitous way should be dragged into the net. I agree with him in that regard. That is why we have cast the net relatively tightly. The majority of people who are apprised of the fact that their property or facilities are being abused in this way are greatly shocked and appalled that that is happening and do everything in their power to ensure that they are not used in that inappropriate way again. However, in some cases that is not the response. One has to accept that some people are perfectly content to engage trenchantly with criminals and facilitate their acts confident in the knowledge that, if they make sure that it cannot be said with any cogency that they have planned the activity or knew expressly of it, they will keep themselves free of punishment but have the advantage of the ill gotten gains or the increased money that they get for their goods. Those individuals are facilitating serious crime while seeking narrowly to remain within the confines of legitimate activity. We hope to use these orders to differentiate between those two categories of people.

In crafting the criminal offence the noble Lord used words such as “knowing” or “reasonable grounds for suspecting”. The latter phrase is a more interesting construct, but the noble Lord will remember that when we have discussed reasonable suspicion or reasonable grounds for believing in relation to criminal offences, we have had difficulty getting that across.

Those words are taken from the relevant provisions of the Proceeds of Crime Act. I did not want to suggest that one might start to amend that.

I appreciate the noble Lord’s wisdom, as we had much debate on those provisions.

In this instance we are trying to deal with the defendant or person who avoids placing themselves in a situation which could be construed as engaging in criminal activity. Such behaviour must be stopped. We believe that, by making a civil order, we do not criminalise these individuals but we stop them from engaging in activity that facilitates crime. Serious criminals who are repeat offenders are very adept at taking advantage of such people in order to facilitate their crime. I am sincerely grateful for the noble Lord’s suggestion. We considered carefully whether we could adopt it but came to the conclusion that the prevention orders were the most appropriate response because there was a balance between creating another criminal offence and targeting the behaviour which we wanted to arrest. We believe that these orders do just that. However, we are very conscious of the concern raised by the noble Lord, Lord Lucas. That is why we have crafted the measure in the way that we have.

We have had very full debate on all the clauses. We believe that Clause 1 supports the intelligence-led approach driving the work of the Serious Organised Crime Agency—and, more generally, other law enforcement agencies—which will be specific and tailored to the response to that intelligence.

On Clauses 2 and 3, we have discussed what constitutes involvement in serious crime, and we will shortly discuss in detail the necessity of maintaining the discretion of the court to treat an offence as if it were included in Schedule 1. I look forward to debating that matter with whichever of the noble Lord, Lord Henley, and the noble Baroness, Lady Anelay, is privileged with the burden of discharging that related duty.

We have outlined how Clauses 3 and 4 are affected, so my reiteration of why Part 1 should hold would not benefit from repetition unless noble Lords think that it would be helpful. To the noble Lord, Lord Goodhart, I would say that we will continue to look at this matter as we move through the Bill and maybe we can then persuade him that the second limb is as proportionate as the first; we have been able to persuade him of that. Hope springs eternal, so I will not hold my breath—just in case.

I would recommend the noble Baroness not to hold her breath, and I would certainly not believe that I am being less liberal than the Government are here. In practice, this is what would obviously happen: if the police thought that something suspicious was going on, the first thing that they would do is go round and talk to the people in the business concerned—who, if they were taken aback by that, would say, “I had no idea about this, we will of course stop it at once”. That would be the end of that, and there would be no prosecution or charges, or anything of that kind.

In their proposals, the Government are in fact taking what I would regard as an easy way out, instead of having to come up with proof to the criminal standard that the person facilitating the crime was in fact aware of, or deliberately closed his eyes to, what was happening. It would not be possible simply on some lower standard such as the balance of probabilities to issue an order that could be highly restrictive and could, as the noble Lord, Lord Lucas, suggested, have a serious adverse effect.

The Government ought to require orders to be imposed only on the basis of a criminal conviction, which it should be possible to obtain here. That would certainly have a serious deterrent effect on those who knew what they were risking. However, I will take the matter no further.

Clause 1 agreed to.

Clause 2 [Involvement in serious crime: England and Wales orders]:

moved Amendment No. 11:

I can be brief on this amendment, but that does not mean that I have no sympathy with it—quite the reverse. I am grateful to Liberty for its briefing, which focuses on the reverse burden of proof. In moving the amendment, the noble Lord, Lord Thomas of Gresford, referred to the innocence of mind and the lack of intent of the person who is potentially subject to the order. We turn to the matter of intent in the next group of amendments and I shall not encroach on that now.

It is right to ask the Minister why it is appropriate in this case to impose the burden of proof on the defendant or, as the Government would say in this case, the “respondent”, as the civil procedure would be followed. She will know from previous debates on other Bills that we on these Benches wish to avoid the reverse burden of proof wherever possible—it even led me to being in the invidious position of being unable to support my noble friend Lady Miller of Hendon in her efforts to ensure that people on the streets could not wear veils in certain circumstances, simply because she was seeking a reverse burden of proof, which made matters so sensitive.

The noble Lord, Lord Thomas of Gresford, is right to target this issue, because at the moment I do not see any justification for applying the reverse burden of proof in this case.

I resist these amendments and I have already explored some of the reasons why. Amendment No. 11 and the other amendments in this grouping would change each reference in the Bill to “facilitation” or “conduct that was likely to facilitate” to include a reference to unreasonableness on the part of the proposed subject at the time of the behaviour.

I agree completely with the sentiment that if the proposed subject of the order has acted reasonably—to come back to the point made by the noble Lord, Lord Lucas—but none the less his actions have facilitated serious crime, or he has behaved in a way that was likely to facilitate serious crime, he should not be made subject to an order. There is no dispute between us on that. The Bill already provides for precisely this. Clause 4(2)(a) and 4(3)(a) state that any act that the proposed subject of an order can show was reasonable in the circumstances must be ignored by the court and so cannot form the basis for an order. These amendments would shift the burden of proving reasonableness from the proposed subject of the order to the applicant for the order. We believe that it is appropriate for the burden to fall to the proposed subject, because the particular reasons for his actions are likely to be within his particular knowledge.

Amendments Nos. 41 and 44 are consequential, as they would remove the existing reference to reasonableness in Clause 4. As a result, it would not be appropriate to accept them. However, I remind noble Lords that in civil proceedings it remains the case that he who asserts must prove; the applicant for these orders at the end of the case will have to have demonstrated to the court’s satisfaction, taking into account the two limbs that we explored earlier and the nature of the judgment in McCann, that they have discharged that responsibility. That puts a heavy burden on the applicant to satisfy a court and we think that it must be right that the people who will have the particular knowledge of the reasons why they did or did not do what it was alleged they did or did not do should be the ones to tell the court about it, as opposed to the applicant for the order. That is a reasonable and practicable approach. Therefore, I invite the noble Lord to withdraw his amendment.

The noble Baroness will recall that earlier this afternoon she told us in no uncertain terms that the burden of disproving in Clause 1(1)(b) was on the respondent and that it was not for the applicant for the order to require proof under Clause 1(1)(b).

I hope that nothing I said earlier was inconsistent with what I have just said. I have tried to explain that the applicant will have to prove it; the respondent will have to produce information about the reasonable excuse, as I have described. That is what I was talking about earlier; perhaps it is difficult when one takes some of these issues out of context, but that is when it happens. The assertion is made and the individual then says, “I have a reasonable excuse”, and has to produce information on what that is. However, at the end of the day, the applicant who seeks the order will have to satisfy the court on the balance of probabilities that the elements have been satisfied to justify the order. The noble Lord will be familiar with the process, having been in courts even longer than I have.

Far too much longer, I am afraid. With the greatest of respect to the Minister, I say that she has shifted her ground. Earlier today, she was undoubtedly saying that the burden of disproving in Clause 1(1)(b) rested on the respondent. Now she is saying that there is an evidential burden on the respondent to raise the issue and that Clause 1(1)(b) means that it remains for the applicant to disprove the issue, once it has been raised. She knows from the number of years that she has practised in the courts that there is a distinct difference between the evidential burden and the primary burden that the prosecution or, in this case, the applicant always carries. She has shifted her ground and I am pleased to hear it, because she will recall that I suggested earlier that if the burden rested on the respondent to disprove under Clause 1(1)(b), that would be an even greater breach of the European Convention on Human Rights than I had appreciated. However, even though she has shifted her ground, what remains is not at all satisfactory. For the moment I shall withdraw the amendment, but I shall certainly come back to it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 12:

I have to tell the Committee that if Amendment No. 12 is agreed, I cannot call Amendments Nos. 13 and 14 because of pre-emption.

I shall be very brief because many of the arguments on this matter have already been advanced. All I want to say at this stage is that I can see no circumstances where a person who has no idea that he is being used in this way should be subject to such an order. I find it fascinating that in the example that the Home Office knows and that the noble Baroness, Lady Anelay, mentioned about fishing tackle there is no culpability at all and yet with the example the noble Lord, Lord Lucas, mentioned about the compartments, somebody could be subject to that order. I find this anomaly very difficult to accept. I wonder whether the Minister could explain the thinking behind these two different circumstances.

We have covered a lot of this before so I shall not try to add too much. It seems to me that where we have people subject to these sorts of order, or potentially subject, if I read the Bill right they will have an effective defence by saying they agree to provide this information. The court will then presumably assess their reliability and if the court thinks they are likely to continue to provide that information correctly and efficiently, they would not grant the order. That is my understanding of it. We do not need to establish rights for ordinary businessmen as a separate defence as that seems to be already in there. I would be grateful for the Government’s confirmation that that is the case.

As my noble friend says, we have got to the point where there is a great extension of the procedures which are already in place with regard to television. When my son bought a television from an ordinary retailer, a week later he received a letter from the television licensing agency saying, “We see you have bought a television. Where is your licence?” So there is clearly—and I had not realised this—a procedure for reporting all sales of television equipment to some authority which then matches it against the database and chases it up. As a result of this legislation we are presumably going to have a series of similar arrangements with materials which are commonly used to commit crimes. Perhaps they are already in place. Perhaps if I go and buy myself a couple of daylight bulbs to offset seasonal affective disorder, I will find that the police know and start coming and looking through my windows to see what I am growing under them.

As my noble friend said, this is becoming a mechanism for producing a regulation whereby, whatever transaction details the Government want, they will have the right to get. However, rather than doing this by regulation so that it is applied evenly in a way that everyone knows, it will be applied by what comes down to an implied threat on an individual basis that says, “If you don’t do this, we will destroy your business”. Again, I question whether this is the right way to treat honest citizens.

It seems to me that our friend with the van with a double floor may turn out to be rather a bad example, and we should not be stuck on bad examples. If someone wants to make vans with a double floor, then, unless someone can prove that they are being used for illegal purposes, he must be allowed to continue to make them. To fit in with what my noble friend Lord Lucas said originally, it cannot be right to stop him doing that, and it would be wrong to say, “You’ve got to report all your customers”. Making vans with double floors might be his business. I can think of lots of uses for such vans. Farmers would like those vehicles—I can think of nothing more useful on a farm. So we must be careful with these examples. I know that the noble Baroness is a little hesitant to use them because they are rather vague as a way of describing what the Government are trying to do, but I am perfectly willing to accept that that is a bad example.

I shall respond, first, to the whole issue of industry regulation and shall take the example given by the noble Baroness, Lady Carnegy of Lour. It would be over-burdensome to say that all purveyors of such vehicles, who may have legitimate purposes, should give information to the authorities when asked. Indeed, I think that these vehicles are sometimes used by jewellers to convey articles from one place to another, which is a legitimate purpose. If you regulated the whole industry, you would put a huge burden on the 99 per cent of businesses that behave entirely appropriately. That would be unfair, unjust and over-burdensome. This provision seeks to target individual businesses which have failed and/or refused to participate in an appropriate way—thankfully, they are still a relatively small minority— and where there is cogent evidence from the authorities that their facilities are being used by serious criminals in a way that inures to the disadvantage of the community and the safety of all. So we think that targeting will make the approach more proportionate.

I have already said that it is our view that someone who has a reasonable excuse will not be in danger. It is a two-staged process. First, the agencies that will operate the orders and will be entitled to apply for them have to deal with a very targeted group engaging in serious criminal activity whom we are seeking to interdict. Therefore, there is always an issue of capacity and of targeting that which is likely to reduce the crime most effectively; in other words, you have to target the relevant people.

Thus, the first test will be the agency identifying those to whom the order should apply. The next test will be undertaken by the legal team which will represent them in relation to these orders, and it will ensure that it is satisfied that an application is more likely than not to succeed. The third test will then be carried out, which, in effect, will be the judgment by the court. We hope that if someone has a reasonable excuse for their activity, they will share it with the authority investigating that activity. If they fail and/or refuse to share it at that stage, they will then share it with the court, which will be in a position to make a decision about reasonableness. If the court finds that the excuse is reasonable, no order can be made.

For the sake of clarity, for which the noble Baroness, Lady Anelay of St Johns, asked, I shall deal with Amendment No. 12. This amendment relates to the meaning of having been involved in serious crime in England and Wales. The same arguments will apply to each of the other amendments, which relate to the other definitions of “involved in” or “involvement in” serious crime in England, Wales and Northern Ireland and outside England, Wales and Northern Ireland.

Clause 2 sets out what constitutes having been involved in serious crime in England and Wales. A person has been involved in serious crime in England and Wales if, first, he has committed a serious offence in England and Wales; secondly, he has facilitated the commission by another person of a serious offence in England and Wales; or, thirdly, he has conducted himself in a way likely to facilitate the commission by himself or another person of a serious offence in England and Wales.

It is right to suppose that the majority of the applications will come under the first two provisions, but Amendment No. 12 would remove the third element. As I said, most of the situations in which we see these orders being useful will be those covered by the first two but we believe that there are instances where the third will be appropriate and useful.

The majority of instances that we can foresee will relate to either organisations or individuals providing a good or service. That will usually be in a business context but occasionally it might be where someone provides a good or service on an informal basis. The sort of behaviour that we are talking about here is where a person or organisation turns a blind eye to the likely outcome of their actions—something to which the noble Baroness, Lady Anelay, referred. They may not specifically intend to facilitate serious crime, but they are not taking the precautions that we would expect reasonable people to take to ensure that their actions cannot facilitate serious crime, and so their actions help to bring real harm to others.

I emphasise that the applicant authority would have to show that the behaviour was “likely” to facilitate serious crime, but we do not believe that that is an easy test to meet. We think that the authorities would have to have cogent evidence to satisfy the court that they fell within this criterion. I believe that the test set out in McCann would apply to these provisions. The court would have to be satisfied that the condition was met, and that would mean that the probable outcome of their actions would have to be the facilitation of serious crime. The vast majority of people are able to apprehend the risk of something being the result of their actions where it is probable. This, combined with the exclusion contained in Clause 4(3)(a), under which any action which is reasonable cannot be the basis for an order, provides strong safeguards to those who might inadvertently facilitate serious crime.

Finally, when considering which conditions of an order will be proportionate, the court will consider the actions that form the basis of the order. The conditions necessary to prevent future involvement in serious crime are likely to be more light-touch for a person who has facilitated a serious offence, compared with a person who has committed a serious offence. For those reasons, the amendments tabled are unhelpful and unlikely to prevent the harm caused by serious crime, and so we must resist them.

I hope that I have been able to better and more adequately explain how the provision will work. On that basis, I hope that the noble Lord, Lord Dholakia, will be content to withdraw—no, the noble Baroness, Lady Anelay. The two are so interchangeable that I have made this terrible slip, and I beg both the noble Lord, Lord Dholakia, and, most keenly, the noble Baroness’s pardon for having so confused them.

I am not so sure who is the more offended or insulted by such an interchangeability. I am sure that we will find plenty of opportunity to disabuse the Minister on those matters.

It is only inability.

My noble friend Lord Lucas rightly referred to the fact that in Clause 4 there is a defence of reasonableness from the point of view of the innocent trader. My concern always is when an innocent person has to avail himself of a reverse burden of proof. We have already had a debate on that in another context.

The Minister has assisted me by further clarifying intent. She said in particular that the majority of applications are likely to be under Clause 2(1)(a) and (b), but maintains that there could be occasions when paragraph (c) would be appropriate. I will certainly read very carefully what she has said with regard to that. She went on to say that she anticipated that cogent evidence would be required that a business was being used for criminal purposes. We have talked too much about adapted lorries today, but I recall that not so long ago the police successfully brought such a prosecution. That makes me think again that there might still be arguments against the need for crime prevention orders on those specific occasions.

The Minister might have unintentionally assisted the noble Lord, Lord Dholakia, who is on my right, at least on this occasion, in his quest to abandon Part 1. He does not have me on his bandwagon at the moment regarding that, but we will see what happens in the future. The noble Baroness has done the Committee a service by clarifying those issues, particularly regarding timing as I can indicate that as a result of her explanation I will not move my amendment on recklessness after what I anticipate will be the diner break. On this occasion, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 13 not moved.]

I beg to move that the House be resumed, and, in moving the Motion and to facilitate refreshment, I suggest that the Committee stage begins again not before 8.34 pm.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.