My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved accordingly, and, on Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 4 [Involvement in serious crime: supplementary]:
[Amendment No. 41 not moved.]
42: Clause 4 , page 5, line 3, leave out paragraph (b)
The noble Baroness said: I shall speak also to Amendments Nos. 43, 45 and 46. They probe the relevance of a person’s mental state to the ability of a court to impose a serious crime prevention order on them. They ask the Government to define what is meant by the term,
“any other aspect of his mental state”.
It is not made clear in the Explanatory Notes.
Clause 4 appears to treat those with mental incapacity or mental ill health inappropriately. It supplements Clauses 2 and 3 and contains further provisions for a situation where a third party is accused of facilitating the commission of a serious crime by another person—in some circumstances, even where that offence is not committed.
The Committee will recall that the facilitator may find himself—despite Jack Straw’s announcement last week, I shall continue to refer to “himself” to save the time of the Committee—made the subject of a serious crime prevention order that can seriously constrain his professional and personal life.
Clause 4(2) provides for the occasions when a person is accused of facilitating a serious crime that is committed, whereas subsection (3) relates to occasions when the respondent conducts himself in a way that is likely to facilitate the commission of a serious offence even when it is not then committed. Subsections (2) and (3) appear at first reading to give respite to a third party who is carrying on an honest business or other activity and does not intend to facilitate serious crime. On the Bill’s first day in Committee, the Minister was keen to assure the Committee that innocent third parties should not in any way face difficulties as a result of the operation of Part 1.
The clause requires the court to ignore any act that the respondent or defendant—whatever one wants to call them—can show was reasonable in the circumstances. As ever, I would much prefer to avoid the adoption of the reverse burden of proof, which can be objectionable. It looks as though worse is to come, because both subsections (2) and (3) are subjected to the further requirement that the court must ignore the intentions and other aspects of the mental state of the respondent at the time of the act in question—not “may”, but “must”, ignore those other aspects.
On the first day in Committee, we debated at length the question of intent. Although I am still uneasy about the Government’s position, I have read Hansard since then and I am prepared to review my initial scepticism. There may be some need for amendment and improvement; I am looking closely at that. The problem is that the injunction in Clause 4, that the court must ignore the person’s mental state, does appear extraordinary. The Explanatory Notes, at paragraph 26, explicitly state:
“This means that it does not matter if the respondent did not, for example, intend to facilitate the commission of a serious offence, or had no knowledge that he was conducting himself in a way that was likely to facilitate serious crime”.
It would appear that, as a consequence, the court would be required to ignore a person’s mental health or mental incapacity; otherwise what does “mental state” mean? I do not believe that the Government's intention would be to treat those with mental ill health or mental incapacity in that way. If it is the Government’s intention—I notice that the Minister shakes her head and says it is not—I would wish the Government to say why they thought that it was a proportionate way of proceeding. In drafting this part of the Bill, did the Government consult organisations that are expert on matters of mental health and mental capacity? If so, which ones, and what was their response?
Additionally, do the Government intend that this provision could or would prevent the court taking into account the fact that a person had been subject to duress; so there was no question of mental incapacity or mental ill health, but perhaps they had been subject to duress and were in a mental state of fear when they conducted themselves in a way that the Government believe is enough to make them a likely subject for a serious crime prevention order? I ask the question against the background that the Court of Appeal recently made decisions in another field, immigration and asylum law, regarding the impact of someone being in a state of fear. I would be interested to see how that will impact on the provisions in this clause.
On the point about “mental state” as a term in this clause, can the Minister tell us what other precedent there is for statute requiring a court to ignore a person's mental state? On the technicalities of my amendments, Amendments Nos. 42 and 45 simply remove paragraph (b) entirely from subsections (2) and (3) and the other two amendments remove the references to,
“any other aspect of his mental state”.
I beg to move.
I should point out that if this amendment is agreed to I will not be able to call Amendment No. 43.
I shall be very brief. The purpose of the amendment is to ensure that a person's mental state can be taken into account by a court when a serious crime prevention order is made. We support it. However, I would also like to hear the Minister’s reasoning on whether such an amendment could be taken on board.
I thank the noble Baroness, Lady Anelay, and the noble Lord, Lord Dholakia, for their helpful indications on how they propose to deal with this matter. Before dealing with the specific amendments, it may be helpful if I explain why we have decided to deal with the mental health element and the mental element as we have. That may elucidate the position in a way which I hope the noble Baroness and the noble Lord will find helpful.
The Bill is drafted as it is—with no mental element included in the court's consideration of whether a person has facilitated serious crime or has acted in a way that was likely to facilitate it—for this reason. It is expressly stated in Clause 1 that the orders will be granted by the court only when they will prevent the harm caused by serious crime. That prevention will be occasioned by terms that are reasonable and proportionate.
In that context, there will be instances when the need to prevent this considerable harm will mean that an order would be appropriate where it would be almost impossible to show the suggested element of intention or recklessness; for example, where a person who owns a string of lodging houses that have been found on several occasions to contain individuals who have been trafficked or smuggled, with the accommodation paid for by others. A first option for law enforcement might be to approach the owner and make him aware of the problem. But when it continued to happen he could potentially successfully argue that he had no knowledge that these people were being trafficked or smuggled, and so could not have the requisite element of intention. Similarly, with a large number of people coming and going, he could argue that he had neither the ability nor the time to check closely each person. In such a situation, it would be difficult to prove an element of recklessness if the person could argue that he had no means of checking whether the person was or was not an illegal immigrant. Therefore, an order which required the owner to provide law enforcement for a limited period with a list of those staying in the houses, or where people’s stay was paid for by a third party, would be a reasonable and proportionate response to prevent those houses being used as stepping stones on the way to people trafficking.
It is sad to reflect that there are those who simply do not care for what purpose their property or services are used. In those circumstances it must be right to assist the prevention of crime by imposing on them a reasonable and proportionate contribution to making sure that these offences are not committed again.
Secondly, it would be inappropriate to import into a civil order concepts of intention and recklessness, which are essentially criminal in nature. Finally, and perhaps most importantly, Amendments Nos. 42 and 45 in particular, but also all the other amendments in the grouping, should be looked at in the context of Clause 4(2)(a) and (3)(a), which the Committee debated on the previous occasion. They provide that any action which the potential subject of the order can show was reasonable cannot constitute either facilitating, or acting in a way which was likely to facilitate, serious crime for the purposes of this legislation. This provides a very strong safeguard to ensure that those who act reasonably can never be the subject of an order.
The noble Baroness properly raises the issue of those who may lack capacity and may not be able to understand. That is why we come back to the reasonableness issue. I am sure that these issues would be raised. If the authority bringing the order did not have the sense to do that, I am relatively confident that the judiciary would. We need to think about how these orders would be used. There is a high threshold for the authority to meet. We and they would prefer to work with individuals on a consensual basis because many good citizens, once they are apprised of a difficulty, are more than happy to respond in a wholly proper way.
For those reasons we do not think that the changes that the noble Baroness seeks are necessary. Because we did not think that they were necessary we did not consult the mental health charities. The noble Baroness will know that if the measure did have an impact we would have done so. We hope that the noble Lord and the noble Baroness will be satisfied and agree with us that the way in which the measure is structured provides the safeguards that both they and we wish to see.
Before my noble friend intervenes, it might assist the Committee if the Minister addressed the question that I asked about precedent in other legislation for a court being required to ignore a person’s mental state. If she does not have the answer to hand, I hope that she will address it so that my noble friends can hear the answer.
I shall certainly do that. What is slightly different is that we are seeking to deal with the issue by making a civil order. The noble Baroness will know that it would be very unusual to find any civil order containing the provisions to which she referred. They are normally properly found in the criminal jurisdiction. We debated whether it was appropriate to have these orders in the civil framework. We argued very strongly that it was and that they constituted an appropriate preventive measure. However, I shall certainly write to the noble Baroness if we find any similar provisions which deal with this matter in either the civil or, indeed, the criminal sphere.
It is quite difficult for a lay person to follow the rather complicated argument that the noble Baroness has had to deploy on the amendments. As I read it, in deciding for the purposes of this part whether a person facilitates the commission by another person of a serious offence,
“the court must ignore … any … aspect of his mental state”.
That is a very strange thing to say. A mental state can be being agitated, having a headache, or being tired, like I am. After trooping through the Lobbies, my mental state is rather strange at the moment. It seems to me that there must be more clarity than that. My noble friend has asked whether the phrase appears in any other legislation. Whether it does or not, I do not think it says anything clear at all. As it is something that must be ignored, it surely must be made clearer.
The reference to “mental state” is a reference to intention. We are saying that you do not need to intend the consequence of that which is sought. I am happy to write to the noble Baroness and have the letter copied to Members of the Committee setting out the examples of how we should do this.
I tried to give the example of the person who has a lodging house who simply says, “I will not do anything at all to assist in relation to these people who you assert are being trafficked”, where the intelligence is that their property is being used, perhaps almost exclusively, for the trafficking of people, and they have been asked about that, and they do not concur that they should do anything about it. It would be very difficult in law to prove that in their refusing to assist their intention was to facilitate trafficking; their intention may simply be to garner as much money as they possibly can. That would put us in difficulty if intention had to be demonstrated.
In those circumstances, it would be reasonable, fair and just for the court to conclude that, to prevent that activity continuing, there should be an order to restrain them from doing certain things or asking them to provide information on the people who came to their property, perhaps when it was paid for by an unknown third party. That would enable us to interdict the criminal offending that is so offensive. That is why the intention is not there in the way that one would normally have it. As I said earlier, in addition to intention, “mental state” includes, for example, knowledge or recklessness. You would not have to show that the person knew that the sole purpose of rooms being rented was so that people could be trafficked through them. That is why we think it would be proper not to consider those things but to look at the acts that were complained about. I am happy to write, I hope clearly, to the noble Baronesses, Lady Carnegy and Lady Anelay, if that would assist.
That has been a very helpful explanation, and equally a very helpful intervention by my noble friend Lady Carnegy, because there is scope for the Government to consider the extraordinary width of the words,
“any other aspect of his mental state”.
I understand exactly what the noble Baroness has just said, but what about a state of shock? What about where someone is unable to form any intention for some reason? That can perfectly well be argued to be a condition of his mental state. I would ask that this be looked at to see whether there can be some narrowing down in a practical way. I hope that the noble Baroness might look favourably on that request.
We think that those issues are covered by the reasonableness provision. In relation to the acts complained of, the defence is very clear. The Bill provides that a person has been involved in serious crime if he,
“has conducted himself in a way that is likely to facilitate the commission by himself or another person of a serious offence”.
The issue is set out clearly. The reasonableness provision covers the issue that the noble and learned Lord has identified. The court would have to be satisfied that the reasons put forward by the individual were not reasonable. All the issues mentioned by the noble Baronesses, Lady Anelay and Lady Carnegy, would fall within the confines of that provision and the court could look at those issues. However, the court would not need to look at whether an individual had the mental element necessary for the commission of what would be a serious offence as a secondary party, although it would need to ensure that they did not have a reasonable excuse.
The Minister talks in reasonable terms, and I am sure that she fully appreciates the nature of what she is doing. She is asking the High Court to make an order if it is satisfied that a person has been involved in serious crime—there must be a finding of involvement. If that is the case, the order may contain the prohibitions, restrictions or requirements such as those that we have previously discussed in Committee. The clause does not require any intention, knowledge or anything else; therefore, not only does it remove altogether what used to be called mens rea, a guilty mind, from the concept of involvement in serious crime but it imposes on the defendant to an application the burden of proving that what he has done is reasonable. So there is a reverse burden of proof and no test of mental state, yet—I know that the noble Baroness does not like this point, because we have had this conflict previously—a person can be put under house arrest under the terms of an order made under this clause. Without knowledge, intention or any mental state at all, and subject to you yourself proving that what you have done is reasonable, you can be targeted by a High Court as a person involved in serious crime. The whole clause is ludicrous.
I am grateful to all noble Lords who have tried to assist me in untangling what remains a difficult part of the Bill. As the noble Lord, Lord Thomas of Gresford, said, this amendment addresses a serious change, because one would be saying to the court that intent did not matter. Reasonableness would be addressed first, but intent must not be taken into account. As I said earlier, having heard the Minister’s argument last week about dispatch with intent, I am prepared to consider that as perhaps an appropriate approach. However, if I am to accept that, I must be assured that the Bill will be so watertight and clear in its construction that the decisions by the High Court would be appropriate. In this clause we are imposing on the High Court a difficult task; in fact, throughout this part of the Bill, courts are perhaps asked to do things that one would not normally ask. It has been said previously how wonderful they all are, but it is not for Parliament to give them impossible tasks.
I hear exactly what the Minister said; she thinks, first, that there should be a general test of reasonableness—there must be a proportionate response. However, the tenor of her argument is that that provision overrides some individual rights. The noble Baroness says no, but she was arguing that there must be a reasonable and proportionate response to prevent the further commission of an offence or to prevent any offence, because some people have not been shown to have committed any offence in the past, and therefore it is proportionate to say that one will ignore intent. That may be an argument that we ultimately accept, and I thank my noble friend Lady Carnegy for her intervention about agitation, which was an important matter. Between now and Report, one needs to look at whether the current definition in subsections (2)(b) and (3)(b) is satisfactory.
I may not want to return to Amendments Nos. 42 and 45, but I am still concerned about Amendments Nos. 43 and 46, which specifically address the other aspect of a person’s mental state at the time. The Minister very carefully said to the Committee that reference to mental state is a reference to intention; but later, in a further explanation, she expanded that by saying that it also covers knowledge and recklessness. However, that is not apparent at the moment. Because this is new in construct and it is a civil burden of proof, I should like to look at it carefully between now and Report. I should certainly also be grateful if I could discuss it at a meeting with the noble Baroness. Because this issue has not been thought appropriate for consultation—perhaps for very good reasons—it is right that I talk to the organisations that represent at their core those with learning difficulties or mental health problems so that they can be reassured. I give way to the noble Lord, Lord Thomas.
Before the noble Baroness decides what to do with her amendment, perhaps I may clarify one point. It is for the court to ignore knowledge or lack of knowledge, to ignore the lack of intent and to ignore the lack of recklessness. A person may be going about his business in a state of mind in which he believes that he is acting perfectly properly, and the burden is on him to show that what he is doing is reasonable; otherwise, he is liable to be subjected to one of these orders.
The noble Lord, Lord Thomas of Gresford, is absolutely right. Of course, on the previous occasion, the noble Baroness proposed that, when a trader was carrying on a business, the police could go along and say, “Do you realise that the way in which you’re doing this is assisting serious crime?”. The person would then have the chance to say, “Well, I won’t do it any more”, or he could proceed and find himself subject to an application for an order.
Like the noble Lord, Lord Thomas of Gresford, I suspect, I do not want a person who has no intent and who does not wish to facilitate crime unwittingly to be caught out by this measure. That is what I want to try to achieve through discussion with the Minister between now and Report. At the moment, I still think that a person with normal good business practice could find himself in difficulty in court when, by the look of it, neither the Government nor I wish that to happen. The noble Baroness has said repeatedly that she does not want honest traders to be nabbed but I think that this does nab them. So I am still concerned, but I am particularly concerned about those who would not be able to form intent anyway. Therefore, I tabled my secondary amendments, Amendments Nos. 43 and 46, because, from my point of view, they address the specific problem of those who are not capable of forming intent. It is not a case of ignoring the intent because they cannot form it.
I think that I have outlined my concerns as a sufficient basis for bringing this matter back on Report, although I hope for a more constructive resolution at that stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 43 to 46 not moved.]
47: Clause 4, page 5, line 13, leave out subsection (4)
The noble Baroness said: I shall speak also to Amendment No. 129. Amendment No. 47 would remove the Secretary of State’s power to amend Schedule 1 by order. If he wished to vary the list of serious crimes in Schedule 1, he would therefore have to be directly accountable to Parliament by bringing forward primary legislation.
Schedule 1 lists the range of offences to be treated as serious crimes. Some, such as people-trafficking, drugs, arms-trafficking and money-laundering, are easily recognisable, but it is more difficult to see others as coming within that range. Our concern is that the Government may bring forward a curate’s egg of an order: a long list most of which would be acceptable to the House but perhaps with an offence which could not easily be considered serious. As we cannot amend orders and as we so very rarely reject them in this House—that will remain the case unless we become an elected House—the imperfect whole might have to be accepted.
The Government have a track record of trying on a curate's egg of an order. I well remember one from the Department for Culture, Media and Sport which offered a goodie to the nation of a free—in other words, to be borne by taxpayers—television licence for over-75s, but in the same order there was a huge increase, well above the usual, in the cost of television licences for everyone else. Another one is about to hit us, as we understand that the Government are to bring forward a casino order which will designate Manchester as the location for the super casino and provide a long list of other sites for less gargantuan casinos. They know full well the strength of feeling, even on their own Benches, against the selection of Manchester and the very firm strength of feeling in favour of those who appear on the long list of smaller casinos. A long list does have defects.
The Minister will say that the Delegated Powers and Regulatory Reform Committee considered this matter in its fifth report and concluded:
“Although this is an important power, and its exercise may impact significantly on the rights of the individual, we do not consider it appropriate”.
Sometimes I take a different view from the Delegated Powers and Regulatory Reform Committee for political reasons or for practical reasons. On this occasion, I can well understand why it came to that conclusion. I have tabled this amendment only to ask the Government to justify their proposals. Primary legislation could be a better way of dealing with something as serious as a schedule of offences, given that a Committee of the House is to be asked to give way in Part 1 on some serious changes to how people are dealt with by way of civil order. I beg to move.
We have similar concerns. This deals with Clause 4, a supplementary provision about involvement in serious crime, which is further supplemented by Clause 76, under which orders may be made. Our concern is whether we reject the entire order or let one offence go through because we do not see how we can scrutinise each and every offence being added. That causes us concern; it would be helpful to know the Minister’s thinking.
In addition to the point mentioned by my noble friend, the Delegated Powers and Regulatory Reform Committee points out that the ability to alter the menu of offences in Schedule 1 is varying the jurisdiction of the courts to make a serious crime prevention order. That is quite a big matter. That committee says that it is quite happy about it, which surprises me. My noble friend said that she thought she could follow the reasoning, but I have not got that far. It seems strange that one can do that. Surely, it would be better to have a framework within which the courts must restrain themselves in making these orders. The jurisdiction can be changed, like a dose of salts going through the House.
I was away when the Bill started its passage through the House, so I come to it fresh. Looking seriously at this schedule for the first time, I am struck by the strange mix of serious offences—things included and omitted. We are later to have an amendment about armed robbery, which is not included.
As a former chairman of the National Rivers Authority, I was a little surprised to see an offence under Section 1 of the Salmon and Freshwater Fisheries Act 1975 at the top of the environment list—fishing for salmon, trout or freshwater fish with prohibited implements. I am against that being permitted, but it hardly seems an offence in quite the same category as drug trafficking, people trafficking, prostitution, child sex, money-laundering and armed robbery. If we start with a seemingly curiously constructed list, it is rather odd that it can be amended simply because the Secretary of State decides to add to or subtract something from it.
If we are to have a schedule of this kind, with all the possible consequences that have been spelled out, the Government must justify what is included in that list and not just be able to add to or subtract from it at will. I shall be interested to hear what the Minister has to say on this. Looking at the list, it seems that we must keep the whole thing tightly under control.
I hope that I shall not disappoint, although I fear I may. The order-making power to amend Schedule 1 is necessary for several reasons, and I must resist Amendment No. 47, and Amendment No. 129 which is consequential upon it.
As all noble Lords who have spoken on this have said, Schedule 1 sets out a list of offences considered serious for the purposes of this Bill. I appreciate that people may have different views as to what constitutes “serious”, but this is our thinking thus far, although we are always open to new ideas. As such, Schedule 1 provides significant certainty as to the types of offences against which these orders will be used. It also provides the framework—the noble Baroness, Lady Carnegy of Lour, sought a framework—against which the courts will exercise their discretion in Clause 2(2)(b). Under Clause 2(2)(b), the court must consider that an offence is serious enough to be treated as if it were specified in the schedule. The offences in the schedule thus provide guidance as to the level of seriousness we are concerned with.
It is not possible to say what areas of criminality serious criminals will move into. Nor is it possible to say whether offences will be created which it would be appropriate to use these orders against. As a result, it is necessary to include an order-making power, so that the Home Secretary may amend the schedule without the need for primary legislation. I am sure that all noble Lords appreciate that the criminal mind is imaginative and always coming up with new ways around things. For that very good reason, we must have the flexibility to stay ahead of the game.
The noble Baroness, Lady Anelay, drew attention to the Delegated Powers Committee report. I was not going to refer to it but, since she has, it is perhaps fair to say that this is not an unusual provision. It is common to include a provision to allow a list of offences to be kept up to date in the way that we suggest, and the power is subject to affirmative resolution, as has been acknowledged. Any order within that will of course be debated by both Houses of Parliament. It is not unknown for these orders to be contested like that.
There is an adequate accounting mechanism, checking the importance or otherwise of amendments brought forward through the order-making power. We resist the amendment for those reasons, and I hope that the noble Baroness will reflect further upon them and withdraw her amendment today.
Of course we continue to keep the list under review; I made that point in my comments. I understand the noble Lord’s point. Some acts of fly-tipping could be extremely serious, including highly dangerous materials. At the other end of the spectrum, of course, it could just be a bag of potatoes. Nevertheless, we must take account of the most serious element with some flexibility. That is why the provision is drafted in that way.
I hope that we shall come back to this. The Minister has just said that flexibility is necessary to keep ahead of the game, but flexibility comes in a variety of guises. At the foot of page 47 one sees some relatively trivial offences; indeed, some very trivial offences can be included in this provision, enabling some pretty draconian steps to be taken.
We recognise that we are able to amend the schedule in that regard in these proceedings. As has been pointed out, we will not be able to amend—without the most frightful scenes were we to try—an order made under this prohibition. I can see the Government arguing for the environment offences on page 47 in support of some further trivial offence which they seek to bring within the ambit of the schedule. This is too dangerous to be allowed to go without further reflection, and I hope that the Government will consider it again. I hope that we shall come back to it in any event, because we must be extremely careful in enlarging the scope of provisions which short-circuit the normal legislative processes for creating criminal offences or criminal sanctions.
I reassure my noble and learned friend that we shall come back to it shortly. I hope that we are able to deploy the arguments more fully in Amendment No. 48.
I find it difficult that we must leave the schedule to the vagaries of an order-making process. To have these new serious crime prevention orders is a serious step. My noble and learned friend Lord Mayhew referred to the need for flexibility on some occasions. He is right. The Government argue for flexibility throughout, but the Government’s flexibility tends to be a straitjacket for everybody else in how they can or cannot behave.
We shall need to look at this more closely, particularly when we have had an opportunity to look at the Government’s justification for what is in the schedule when we get to Amendment No. 48. For the moment, however, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 4 agreed to.
Schedule 1 [Serious offences]:
48: Schedule 1 , page 46, line 25, at end insert—
“Armed robbery An offence under section 8(1) of the Theft Act 1968 (c. 60) where it is alleged that, at some time during the commission of the offence, the defendant had in his possession a firearm or imitation firearm (as defined by section 57 of the Firearms Act 1968 (c. 27)).”
The noble Baroness said: I also speak to Amendments Nos. 49 and 51. The amendments do what my noble and learned friend Lord Mayhew wanted to do: ask the Government to justify the crimes listed in Schedule 1. I would like to know the reasoning behind the drafting of the schedule and what the Government considered should or should not be in. Were other offences originally thought of as forming part of it and then rejected? How did it end up being, in a sense, a beauty parade?
There must be an explanation of why some offences that one would normally consider serious are omitted from the list. On the previous group of amendments, the noble Lord, Lord Bassam, said that things might become offences because of a change in behaviour; information technology has given us the prime examples of that. The noble Baroness, Lady Scotland, has referred to the use of pornography over the internet, and we must change our criminal law to address that. I can also understand that those involved in serious crime may find one avenue closed off and turn to another. That is a future which requires flexibility.
We need to know why it is this particular list, and why now. What evidence do the Government have that something as serious as a serious crime prevention order, with all that it entails, is the only way of dealing with serious criminals involved in these offences? For example, I have excluded the fishing provision—
“Ah”, says the Minister. I know from my noble friend Lady Carnegy of Lour that fishing illegally is a very vexed and serious crime. Since it is a serious crime, why is it incapable of being dealt with by way of a criminal prosecution? That is why I tabled the amendment to exclude fishing. I would like to know why it has proved impossible—if it has proved impossible—to bring those culpable of that offence to book by way of a criminal prosecution.
Amendments Nos. 48 and 50 look at another offence that I would have thought might have been on the list, which is armed robbery. Why has it been omitted? I am grateful to Mr John Letizia of the British Bankers’ Association for his briefing on this matter and for his welcome for my amendments. He points out that last year, British Bankers’ Association members suffered 118 armed robberies, incurring significant losses and resulting in injuries to staff and customers. He also asked that I consider widening, perhaps on Report, the definition of armed robbery to include a wider range of weapons and firearms. He helpfully provided me with a table giving details of the number of armed robberies suffered by banks, building societies, post offices and cash security firms in 2006. It is alarming to see the dangers faced by staff, and sometimes by customers, in those businesses. The table shows that while the use of imitation firearms accounts for a significant proportion of robberies, criminals also regularly use knives, machetes and other implements when committing a robbery. The choice of weapon may vary between criminals, but the threat and use of violence is a constant and increasing reality. The industry has invested heavily in trying to make the banking environment safer, but there is still a serious threat to it. I shall be grateful if the Minister will address why armed robbery is not in the Bill if fishing is.
I remain concerned about what my noble friends described in the earlier amendment as a rather eclectic mix of crimes that appear to have wandered into Schedule 1. What consultation was carried out by the Government, with whom and when, on which crimes should be listed in Schedule 1? I note that the Government’s consultation paper New Powers Against Organised and Financial Crime did not give information about the list of crimes that the Government intended to put in Schedule 1. The questions that were listed for respondents to consider did not ask them to say which crimes should come within the remit of an organised crime prevention order, as it was called in the consultation paper. Respondents were not given any clear indication of which crimes the Government would ultimately put in Schedule 1. The case studies on pages 36 and 37 refer to drug trafficking, money-laundering and vehicle ringing, but there is nothing about fishing for salmon. Why have we got the list in Schedule 1, where does it come from and what is the rationale? I beg to move.
I am afraid there is danger of a split on the Front Bench of the Liberal Democrats, because my noble friend Lord Mar and Kellie is very proud of his hereditary right to trawl for salmon in the estuarial waters of the Firth of Forth. It is clear that for him the offence in paragraph 11(1) of Schedule 1 is very serious. I, too, am a bit worried because I recall that many years ago I lent my 12 year-old nephew a rod with mackerel feathers on it and told him to go off and fish in the sea at Uist. Off he went to have the rod confiscated by a very large—about six foot six—Liverpudlian ghillie. I was sent down there to assert rights of ownership, only to be told where to go by the Liverpudlian ghillie. I ended up crawling to the local laird for my rod back. Would innocently providing an instrument come within Clause 4(2)(b)? I was without any knowledge that we were committing a criminal offence and I was not reckless, but it seems to me that, under this legislation, I could have been subjected for participating in a criminal offence to an order in the High Court that would have me house arrested. That is where this legislation leads.
When we talk about salmon fishery in paragraph 11, are we talking about salmon in fresh water or in the sea? Does it cover the illegitimate poaching of salmon off the Farne Islands, which is one of the reasons why there are no salmon in the rivers? The noble Baroness spoke about people getting into crime; there is no point in getting into the crime of poaching salmon in rivers these days because there are no salmon in them, as I know to my cost. This schedule is a mishmash. What has happened is that a few phone calls have been made to every government department asking them to come up with a crime that can be put in the nice new schedule, so that we can lock people up in their own homes if they commit it. I know it is absurd, but that is because the Bill is absurd.
I shall not answer the question because I think the noble Lord, Lord Thomas, tests me. He is a fine lawyer, and he would not want to mislead the Committee. He knows that what he says is not right. I shall see whether he will agree with me when I remind the Committee that it is not possible to place someone under house arrest because, as he knows only too well, to do so would always be disproportionate because it would breach Article 5 of the European Convention on Human Rights. Having said that—which I hope he will agree with—I hope that we can desist from conversations about house arrest. Our joke is now well and truly put to rest.
Clause 5(3) says in terms:
“Examples of prohibitions, restrictions or requirements that may be imposed on individuals … by serious crime prevention orders include prohibitions or restrictions on … the premises to which an individual has access … the use of any premises … an individual’s travel”.
There it is: house arrest.
I invite noble Lords to look at the front leaf of the Bill. I know that sometimes that may be difficult for the noble Lord, Lord Thomas of Gresford, so I invite him to look at it with me. It states that,
“the provisions of … the Bill ... are compatible with the Convention rights”.
House arrest would not be compatible with convention rights. I hope that he and I can agree on that, at least.
I shall address the Committee briefly on fishing with rods and lines in rivers and on armed robbery. They appear to be miles apart but the principle is very much the same.
As I understand it, Section 1 of the Salmon and Freshwater Fisheries Act 1975 applies to rivers and estuary waters. I, too, fish for salmon, often without much success. Poaching of salmon by organised gangs can take a substantial form. Years ago a gang dropped a woollen sock filled with cyanide into a river, taking out hundreds of salmon in one go. Quite literally, a killing was made by the perpetrators of that offence. Highly organised salmon poaching disrupts people like me and other noble Lords when fishing; but, much more seriously, it affects the fragile rural economy of the area in which it takes place. We can therefore see the seriousness of the Bill. The difficulty is that it can apply all the way down to somebody using a rod that is prohibited. There is then an argument about proportionality, which is a matter for discussion elsewhere.
With the greatest respect to the noble Lord, I must say that fly-tipping in this sense is not dropping a cigarette paper or something similar but tipping tonnes of toxic waste into a watercourse or the sea. That is done at very high reward for those disposing of it. One needs to bear that in mind.
I too was surprised that armed robbery was not included. On the basis of figures that I have not yet had a chance to substantiate, I learnt only this morning about a spate of robberies of cash in transit in the capital, in which many millions of pounds have been stolen. I understand that there has been a threefold increase of that type of robbery. In many of those incidents in the past 12 months, knives have been used. Why are only firearms included in the amendment? We all know—it has already been referred to in your Lordships' House—the ingenuity of criminals who, one concludes, will immediately turn away from firearms and use knives, petrol or a range of other things. One might look at the American legislation, which uses the term “deadly weapon”, which is strictly and carefully delineated in USA law. An amendment could encompass something like that. I vigorously suggest that armed robbery should be included.
I, too, strongly support the inclusion of armed robbery. I entirely understand why my noble friend has said that.
I return to environmental issues. I had a similar experience to that of the noble Lord, Lord Thomas of Gresford, in my own garden. I handed a plastic rod with some paste or something attached to the end of what was little more than a piece of string to the small son of a distinguished general and told him to go and keep quiet. He sat on the bridge over the stream that runs around my garden in Wales. Suddenly he came running back in great distress because the local bailiff had grabbed him and told him that he was committing an offence.
I have a more serious point about the environment. As a former chairman of the National Rivers Authority, I understand that, given the nature and seriousness of the crime, one might be puzzled as to why we are including it in the Bill because currently there are a whole string of perfectly good laws that can deal with these offences. The problem we had at the Environment Agency was not that there were no laws to prevent offences of this kind or, indeed, the very serious offences involving the deposit, treatment or disposal of waste; there are very effective laws. One of the first things we succeeded in doing a few weeks after the National Rivers Authority was set up was to have the Shell oil company fined £1 million for an offence in the Mersey. There are penalties. The difficulty usually is that the magistrates will not impose adequate penalties when people are brought to court. It is not because the penalties are not available.
The noble Lord, Lord Thomas of Gresford, is absolutely right: there was a trawl around government departments and the Department for the Environment, Food and Rural Affairs put in a bid. It had to put in something, so it included a number of offences that have been perfectly successfully dealt with by existing laws for many years. Yet armed robbery has been left out, when most of us would have thought it should be included in any list.
I entirely understand and support the whole purpose of the Bill. I was the chairman of an IT company dealing with complicated IT systems; therefore, I am familiar with the whole business of modern crime. I understand why we should have a Bill of this kind; its purpose is spelt out on page 1. However, bearing in mind the serious consequences of imposing these orders, we should be pretty selective about how we use the legislation. If we use it where necessary, Ministers will have my total support, but we should be very cautious about applying it to cases where there are perfectly good existing laws and where there is no evidence that the kind of criminal activity with which we are concerned is part of the problem covered by the environment clauses, among others.
I hope that the Government will give careful thought to whether the list is right. If they want the support of both Parliament and the public—and that is rather important—in pursuing this whole business and doing so in the courts, an offence’s inclusion must be really necessary; it must not be an add-on, which would merely cause aggravation.
Is my noble friend Lord Crickhowell sure that there will be no circumstances in which prevention of a systematic destruction of salmon in river estuaries is required? He knows more about fishing than I do, but I live near estuaries and am surrounded by fishermen who have great difficulty in finding salmon to catch. The question is whether we need a mechanism for preventing the destruction of salmon in estuaries. Is my noble friend quite happy that that would never happen? If so, I accept that the offence should not be in the list.
All I can say is that we often had cases where, by keeping our ears to the ground and using the sources available to us, we had good grounds for thinking that crimes were going to be committed. We often had to turn out substantial forces of bailiffs and so on to deal with those crimes; but they were dealt with under the ordinary procedures available to organisations at that time. The law was there in support. I really am not convinced that we need the draconian powers added by the Bill to deal with that sort of offence. I have to be convinced that that is so.
I have no difficulty in accepting the explanation that the Minister offered at Second Reading about matters relating to fishing. The last thing I want to do is to fall foul of my noble friend Lord Mar and Kellie.
We talked about armed robbery and fishing but not about what constitutes a serious crime. I raised that at Second Reading. We were given to understand at the briefing session that the extension of powers to the Serious and Organised Crime Agency related to drugs, fraud and human trafficking. I have no difficulty with that. Of course those are serious matters. But, rather than talking at this stage of whether armed robbery is a serious crime, would it not be better to talk about what constitutes a serious crime, and if something is a serious crime, whether it should be included in this legislation? No matter what we talk about here, if you tell the public that fishing is a serious crime but that armed robbery has not been included, many questions would be asked as to why not.
I am tempted to follow the noble Lord, Lord Crickhowell, and I entirely understand what the noble Lord, Lord Dear, is talking about in regard to water pollution. I appeared for Shell in the case concerning the pollution of the Mersey, to which the noble Lord, Lord Crickhowell, referred. He said that there are adequate laws to deal with such offences; there certainly were. Mr Justice Mars-Jones lashed out what was then the record fine of £1 million. It was the final sentence he passed before he retired. I had to follow being on the receiving end of that fine with a eulogy to his character and virtues as a judge. That is burned into my memory. The point that the noble Lord makes is extremely valid: there are more than adequate powers already to deal with this sort of issue, and to include a provision of this nature is entirely wrong.
I congratulate the noble Baroness on moving the amendment as she did, because it neatly juxtaposes fishing and armed robbery in a very clever way and invites the sort of debate that we have had. I have been entertained listening to the debate for the past 20 minutes. It has had more merit than I expected.
I will reverse how I deal with the issues raised because of how the amendments worked out in debate. I shall deal with Amendments Nos. 49 and 51 first and then come back to the fishing amendments. I have listened with great care to what has been said about the armed robbery amendment, if you like. There is considerable merit in it. It must be right that we look at that again. I accept the arguments about it. We are consulting stakeholders to ensure that the schedule reflects those offences for which it would be appropriate in all circumstances to place an order. The noble Lord, Lord Dear, made the point about including firearms; again, we will take that point on board.
In a sense, our discussion has underlined the point I made on the earlier amendment: just as we as a House can disagree over what should be included in a list of matters to be considered serious, we need that flexibility because, at different times, seriousness will come into play and different and new offences will raise their heads. It is right we have a schedule, an order-making process, and that we keep under careful review what should be in the schedule.
The noble Lord makes an interesting point, but is there a theme behind the schedule? On the face of it, it is a ragbag of various types of unrelated offences. What is the theme that has resulted in this extraordinary range of offences, so very different in character? I just do not get it at the moment. I am sure that there must be a theme, but what is it?
Murder is a separate category: if you are convicted of murder, it is a very serious offence, you are taken out of the frame, you are unlikely to be in a position where you can be reconvicted. That is not the same with other serious offences such as, for instance, armed robbery and robberies conducted using a dangerous weapon.
I take issue—in a sense, the House took issue with itself because there was considerable debate on the Benches opposite—on the argument about environmental offences. I agree with the noble Baroness, Lady Carnegy of Lour, and the noble Earl, Lord Mar and Kellie—although he has not spoken in this debate, we have been told what his views are. I agree with the noble Lord, Lord Dear, that environmental offences are very serious. That is precisely why they are in the schedule. I have thought very carefully about this issue. People are now coming to the view that environmental offences are increasingly serious. Only this week, we brought forward a climate control Bill. That underlines the point.
I hope that I made it clear that I am trying to find out not just the level of seriousness expected but why the Government think that those offences—in this case, environmental offences—cannot be dealt with properly by existing criminal offences. Why are they being left to be dealt with according to the civil burden of proof used in serious crime prevention orders? I hope that he will address that underlying question.
I will come to that point, but I want to finish the first issue, because it is important. The debate in the House underlined the increasing seriousness with which our society views environmental crimes. That is why the list is there. The noble Lord, Lord Dear, gave a very good example on salmon fishing of why such an offence is serious; the noble Baroness, Lady Carnegy of Lour, did exactly the same. They are absolutely right: vast sums of money can be made by committing such offences.
Many years ago, and it seemed strange at the time, my local authority had a rare orchid collection. We spent a lot of money protecting those rare orchids, and I was told that they had considerable value if there was a market for them. The idea that rare species can be stolen and sold is anathema to me and, probably, to many people in this country. That is why we consider environmental offences, whether they relate to flora, fauna, fishing or whatever, as serious.
The noble Baroness partly answered her own point because the orders relate to the prevention of crime. That is why they are set out as they are and why the order-making power is there. Of course we expect that the offences will be dealt with in the normal way, but this is a preventive method. The applicant authority in these cases must prove to the standard set out in McCann, which is likely to be very close to beyond reasonable doubt, that the person who is the proposed subject of the order has been involved in serious crime. That is in Clause 1(1)(a), as I am sure all Members of the Committee appreciate.
On the question posed by the noble Baroness about where the list of offences came from, for the most part they originate from the schedule of lifestyle offences included in the Proceeds of Crime Act, with which I am sure noble Lords will be very familiar. We indeed added certain offences, including the environmental offences, but only after careful consultation with stakeholders.
In particular, representations were made to us by ACPO on the proposal to include salmon and freshwater fisheries offences. We received advice from the ACPO environmental and wildlife crime lead officer, Chief Constable Richard Brunstrom of north Wales, who obviously, considering the environment that north Wales covers, has considerable experience in making such recommendations. We have consulted generally and widely among law enforcement authorities and agencies, following which we are keeping the matter under review. It is for that reason that, although I cannot accept the wording set out in Amendments Nos. 48 and 50, we want to give them careful consideration.
So we resist Amendments Nos. 49 and 51 but we are prepared to have further discussion outside the Committee about Amendments Nos. 48 and 50. I hope that, having heard that, the noble Baroness will see the rationale behind our approach and our desire to ensure that the schedule is as comprehensive as many noble Lords have suggested it needs to be.
The noble Lord has not answered the question posed by the noble Lord, Lord Waddington: what is the theme? Surely, if someone was facilitating murder, it would be proportionate to put them under house arrest. Why should murder not be in the schedule? That was the precise question asked by the noble Lord.
As the Minister has said that he is prepared to consider my Amendments Nos. 48 and 50 as a sensible addition, it would be churlish to say that I am not very happy with the rest of his reply; but I am not. So much still needs to be explained here. The core of my question was why these offences are in the Bill on the basis that they cannot be successfully criminally prosecuted. That was my underlying question. There is a gap here. We are being told that a civil order must be available, one assumes because a criminal prosecution will not be successfully pursued.
That is not the case. On the first day of Committee I tried to explain that we will have prosecuted significant players in most of these cases. We are trying to interdict criminal activity in the future. The purpose is therefore not simply to consider the offences that have been committed, because we will prosecute those where appropriate, but to see how we can prevent similar offences being committed in the future by those individuals or by individuals with whom they associate and who have facilitated serious crime. That is why Clause 1 provides that they have been involved in serious crime. Clause 2 considers whether it is right, fair, just and proportionate to make an order to prevent such individuals continuing to act in that way. I am very concerned that there is almost a suggestion that we should either prosecute or make a preventive order. In most of the cases, we will want both. They may happen at different times. A prosecution, such as in the case of Adams, may take a very long time, so we may want to put preventive orders in place before such a situation comes to fruition. It is not either/or; it really is both, and it is preventive in nature.
We on these Benches have always made it clear that we do not want this to be either/or. We would much prefer there to be a criminal prosecution. Our concern and the concern of those who have been briefing all Members of the House is that the Government are going down the route of having that option available to them. I know that there are other amendments in the names of the noble Lords, Lord Thomas of Gresford and Lord Dholakia, that will fully explore that concern, so I shall not stray into it now.
The noble Lord, Lord Dear, very properly asked me, as did the BBA, why my amendment dealt only with robbery using firearms. My answer is very prosaic: when I looked at the list, my immediate response was, “Why not armed robbery?”. I could understand why not murder or manslaughter, because they are a matter of people being on licence. I chose armed robbery because one is not automatically on licence when one is released. This seemed to me to be a serious matter, and I tabled the amendment as a litmus paper to test where the Government were going. I simply asked the Public Bill Office to draft a probing amendment and made it clear to the office that I did not intend to divide the Committee. It came up with this amendment, which I accepted with my usual gratitude, as I had had no work to do. However, I agree with the noble Lord, Lord Dear, and the British Bankers’ Association that armed robbery carried out with other weapons is equally heinous and must be treated as a serious crime.
I did say that I would try not to stray into the realms of later Liberal Democrat amendments, even though the noble Lord tempts me to do so. It certainly appears from the Bill that the Government intend what the noble Lord suggests to happen. There appear to be provisions to enable someone who has been acquitted then to be subject to an application for a civil order. We will consider that when we come to particular amendments that deal with the supervisory role of the DPP and that of other directors and the Attorney-General. I assure the noble Lord that I shall address those questions, too.
On Amendment No. 48, I am grateful to the Minister for at least trying to flesh out the Government’s approach to the list and how they ended up with this rather odd collection of crimes that are all serious in some respects, depending on the level at which they are committed. I was rather alarmed that at one stage the Minister said that the Government were now consulting stakeholders on the content of the list, and said later that some aspects such as environmental issues were added after consultation. His response to my original question about the consultation and where it was was rather mixed, unless I misheard him.
For the sake of clarity, I should say that the offence list was put together at the same time. There was a continuing consultation. I should perhaps have made it clear that that particular range of offences was the fruit of that consultation with Chief Constable Richard Brunstrom of north Wales. I do not want to create the impression that there were separate consultations all over the place. This has been part of an extended process.
It was unfortunate that the consultation on the precise format of the list in Schedule 8 was not carried out at the time of the more general consultation. However, that has passed and we need to consider what the Minister has said today before we return on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 49 to 51 not moved.]
Schedule 1 agreed to.
Clause 5 [Type of provision that may be made by orders]:
[Amendment No. 52 not moved.]
[Amendments Nos. 53 to 59 not moved.]
60: Clause 5, page 6, line 6, leave out subsection (7)
The noble Baroness said: I shall also speak to Amendment No. 62. I note that Amendment No. 61 in the name of the noble Lord, Lord Dholakia, is grouped with them. Naturally, I will listen to his presentation of that before I comment on his position.
Under Clause 5(7), the actual prohibitions, restrictions or requirements that are to be imposed by the serious crime prevention order do not have to be set by the court in detail and stated in the order. They can also be,
“determined in accordance with provision made by the orders”.
The court may therefore give a general indication but leave the detail to be worked out later. How would that be practical? How would it enable the person subject to the serious crime prevention order to make proper representations in court as to the potential impact of the order on them if they do not know its precise terms? The order can also include,
“provision conferring discretion on law enforcement officers”.
On our first day in Committee, my noble and learned friend Lord Mayhew of Twysden referred in particular to this part of the clause and set out the difficulties, as he saw them, with that. I agree entirely with what he said then.
This part of the clause would mean, for example, that an order could state merely that a Mr Smith shall comply with anything the police may tell him to do which they think is necessary to stop him engaging in criminal activity. That is a very broad brush and means that the police will have a far more direct way of ordering the person to report at such times as they may later direct. However, that is not what the Bill says; it leaves a wide degree of legal uncertainty, which we find unacceptable, especially in connection with an order that, if breached, could lead to up to five years’ imprisonment.
Experience to date of both ASBOs and control orders reveals several risks about how serious crime prevention orders might operate in practice. There are also dangers that an order could include standard restrictions rather than the order being tailored to the particular circumstances of the individual, and that there would be no regular review of the order with the result that restrictions would stay in place that were no longer necessary or proportionate. We will come later to the provisions in Clause 17 for variation, which we think do not necessarily resolve that issue.
Amendment No. 60 therefore deletes subsection (7) altogether, thus removing the provision allowing the courts to impose an order which did not give the detail of the prohibitions to be observed, and is simply a way of probing why the Government have drafted the subsection in this way. Amendment No. 62 would remove the powers of the courts to impose an order that might simply direct a person to do whatever a law enforcement officer might or might not tell them. It deletes the words,
“including provision conferring discretion on law enforcement officers”.
The Government have provided the Committee with an example of when this provision might be used. Paragraph 33 of the Explanatory Notes states that:
“An example of this would be where a term of an order stipulates that certain information had to be provided to law enforcement officers on a regular basis, but that law enforcement officers could stipulate at a later time the means or specific timing of that information’s provision”.
There appears to be a notable distinction between this example and what the Bill would actually allow. The example refers to law enforcement officers specifying reasonable means by which a person should perform a requirement imposed by an order of the court, but not setting the requirements or prohibitions themselves. The amendment to leave out the subsection would permit the kind of scenario given in the Explanatory Notes, but would allow the courts to impose restrictions, requirements or prohibitions only on an order itself.
The current drafting of subsection (7) is unacceptable and we will need to find a way of resolving this on Report. There are ways to achieve that, but we need to look at it carefully. I was encouraged to believe that the Government might take a reasonable course in this matter when the noble Baroness, Lady Scotland, said on the first day of our consideration in Committee:
“It may be appropriate to amend it”—
“subsequent to our discussion, to give it greater acuity than it has at present.—[Official Report, 7/3/07; col. 259.]
I hope that bodes well for our future discussions on this. I beg to move.
I rise to put our arguments in support of the points made by the noble Baroness, Lady Anelay. We have been assisted in our amendment, Amendment No. 61, by Liberty. Its purpose is to remove the power of the court to sub-delegate requirements in relation to prohibitions and restrictions in serious crime prevention orders. It would allow determination of the precise means of performing an obligation imposed in an order to be sub-delegated.
As presently drafted, subsection (7) would completely undermine the principle of legal certainty and would allow the courts to confer unacceptable powers on law enforcement agencies to restrict a person’s freedom. It states that the actual prohibitions, restrictions or requirements that are imposed by the serious crime prevention order do not need to be set by the court and stated on the face of the order. They may also be “determined” in accordance with provision made by the orders, including provision conferring discretion on law enforcement officers. This would mean, for example, that a serious crime prevention order could state merely that, “Mr X shall comply with anything the police tell him to do which they think is necessary to stop Mr X engaging in criminal activity”. This degree of legal uncertainty and sub-delegation of law making to law enforcement authorities is wholly unacceptable, especially in connection with an order which, if breached, could lead to up to five years’ imprisonment.
The Government have provided an example, which I too shall quote:
“An example of this would be where a term of an order stipulates that certain information had to be provided to law enforcement officers on a regular basis, but that law enforcement officers could stipulate at a later time the means or specific timing of that information’s provision”.
We consider there to be a notable distinction between this example and what the Bill would actually allow. The example refers to law enforcement officers specifying reasonable means by which a person should perform a requirement imposed on an order by the court, not setting the requirements or prohibitions themselves. The amendment would permit the kind of scenario given in the Explanatory Notes, but would allow only the courts to impose restrictions, requirements or prohibitions on a serious crime prevention order.
I have no intention of inhibiting the debate, but I rise just to say to noble Lords that we intend to be helpful on this amendment. That may allow noble Lords to shorten their commentary. I shall explain our thinking on this.
The intent behind the clause is to enable law enforcement officers to be able to specify certain minor elements of how an order should be complied with. For example, where the terms of an order state that a person must provide information to law enforcement officers on a regular basis, it seems reasonable to allow them to specify, for instance, that the information should be provided to a specified person at a specified time each month. This is simply a means of trying to provide a practical system which will work effectively.
As my noble friend Lady Scotland hinted on our first day in Committee, we have been giving the issues raised by Clause 5(7) some thought, and having heard the points made by several noble Lords at Second Reading we have been looking at the provision again to see whether it requires further amendment. What I can say today is that while we cannot support these amendments for the reasons I have just outlined and because we believe the policy intent behind it serves a useful purpose, we understand the concerns and issues raised here and we should like to take the amendments away in order to bring something back with which all noble Lords, in particular the movers and supporters of these amendments, will feel content. Having said that, I hope that the noble Baroness will feel able to withdraw her amendment.
When pushing at an open door I do not like to take too much advantage unless the result on Report is not acceptable, but we hope that it will be. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 61 and 62 not moved.]
Clause 5 agreed to.
63: After Clause 5, insert the following new Clause—
“Register of serious crime prevention orders
(1) The Secretary of State must maintain a register of all serious crime prevention orders currently in force, recording for each one—
(a) the name and address of the person subject to the order; (b) the nature of the serious crime that the court is satisfied that the person has been involved in for the purposes of section 1(1)(a) of this Act; and (c) the terms and duration of the order. (2) The register shall be open to public inspection.”
The noble Lord said: Although as my noble friend Lord Waddington pointed out earlier this Bill cannot touch Scaramanga as a professional hit man—we will continue to have to rely on James Bond for that—it has extremely wide application and, in particular, will be liable to mess up the lives of people who on the face of it may be entirely innocent traders dealing in, say, artificial sweeteners that happen to have a nefarious use in some hands. If we are to give such wide powers to the Government and to law enforcement agencies, we want to be sure that we know how they are being used and can keep an eye on what is happening. I do not put any particular store in the drafting of my amendment, but I want to be sure that if, in two years’ time, I table a Question saying, “Tell me exactly how these orders have been used”, I will get a clear and complete answer. I beg to move.
In supporting the line advocated by the noble Lord, Lord Lucas, I want to say something that I would have wished to have said slightly earlier in the debate. The Government have used such wide and draconian drafting here that it is highly likely that in practice the provision will not be implemented or used. That is likely to happen because there would be such a public outcry if it were used that it would be more trouble than it is worth.
I am grateful to the noble Lord, Lord Lucas, for this amendment. I like the sound of it very much. It is not as if the record of the Home Office in maintaining accurate statistics has been particularly glorious over recent years, yet we shall certainly want to keep the use of these orders under review. It is important that we should have accurate information about them, and this seems to be an admirable way of ensuring that we have a register where each one is recorded. I hope it will find favourable reception.
I, too, support this amendment. I have wondered for a long time, certainly through Second Reading, how one could audit what is going on here, and this seems to fit the bill, if your Lordships will pardon the pun, with regard to who should keep it. I would have thought SOCA might be one such agency since, one concludes, it will be using it the most. I see every reason to speak in favour of this, and nothing against it.
We also support the amendment of the noble Lord, Lord Lucas. In it he states that the Secretary of State must maintain a register of all serious crime orders currently in force. One would hope that that those orders would continue to be on a register that was available for scrutiny, notwithstanding that they had then ceased to be in force. Then at least we would have not just current orders but older orders too, so that we could gauge exactly what has happened in the past as well as what is currently happening.
I strongly support what has been said. It is extremely important that what goes on in this way should be transparent. The fact that it was would be a significant protection to the individual, because it would cause those asking for such orders to think carefully before they did so.
I add my support to my noble friend for the practical way he has brought forward this amendment. As the noble Lord, Lord Dear, said, my noble friend is trying to achieve an audit of this new process. I am sure he would not mind if some of the drafting were changed, but it is the principle behind it that he seeks to explore. My noble and learned friend Lord Lyell of Markyate rightly says that this amendment would provide protection for the individual subject to the imposition of an order.
Equally, though, it would prove useful for the police who will have to enforce the order. We are told that SOCA will be the major force involved in determining whether an application should be made for an order, as it will identify the person for whom an order is appropriate. The application will then be made, subject to supervision by the DPP and the Attorney-General, but SOCA kicks off the whole process. As in all these matters, though, it is our local police forces that then have to bear the brunt in officer hours and the cost of enforcing them. It is important that our police forces have the proposed register. I have this in mind because last Friday I was fortunate enough to be able to attend the passing-out ceremony for officers who are now going to serve with our air support unit in Surrey. I am aware of the huge burdens on their time already, due to the activity and the record-keeping they have to do. It is important that they have ready access to information that means they can ensure that the terms of the order are properly kept and, if those are breached, that the person is brought back to court.
I attended a briefing last night—the noble Lord, Lord Dholakia, was there as well—in which we were told of the success of the sexual offenders register. Those who keep that keep the violent crime register as well. It might well be thought, were this amendment to find favour, that this could be put with them.
If your Lordships want to protect the individual who is subject to an order, I wonder why such a register should be open to public inspection. That seems like people intruding into areas that may be dangerous. I can understand the register being kept and those involved having access to it, but if we open it out, in the kind of world we are living in, I do not know whether the private person is going to be protected.
That was a very useful discussion, and I want to let the noble Lord, Lord Lucas, know that I have quite a lot of sympathy with the purpose behind this amendment. That said, I am not in a position to accept it, but I will make some comments that he may find offer him some comfort.
Noble Lords have spoken about the need for an audit, for transparency and for accurate record-keeping. All those things are right. Having listened to what noble Lords were saying, I was thinking back to when we put in place legislation on football disorder and created football banning orders. That created a situation where there needed to be careful records kept of those who were subject to particular restrictions on their movement. The important thing there was to have accuracy in recording so that careful preventive measures could be taken, particularly at points of departure from the UK.
This amendment would place an obligation on the Home Secretary to maintain a register in relation to these orders and make it open to public inspection. I will come back to the points just made by the right reverend Prelate, because they are important. I can say that we are currently setting up a working group to look at the practical implications of implementing the orders to examine the issues the noble Lord, Lord Lucas, has raised in this debate. Through its practitioner representatives, which will include the judiciary, the group will discuss the best way to ensure that these orders are used in the most effective and co-ordinated way possible between law enforcement, the applicant authorities and the courts. That set of discussions will need to include a careful look at systems that will be necessary in terms of recording and monitoring the use of the orders. My guess is that there will have to be a register of sorts kept for those purposes. It would be wrong to use this amendment to pre-empt the discussions of those with expertise in this field. The amendment accepts a particular system for recording the orders, and it would not be right to specify that in advance of the practitioners having the intelligent discussions they need to in order to make the system workable.
The noble Lord sets out in his amendment that a register should be open to the public, and there are a number of objections to that in principle, not least because a blanket disclosure of the personal details of those subject to an order would not be compatible in any event with the European Convention on Human Rights. Perhaps on another day the noble and learned Lords, Lord Lyell of Markyate or Lord Mayhew of Twysden, might argue that point, and I would be honour bound to accept it. Any interference of the sort suggested by the amendment with the right to a private and family life under Article 8 would need to be in accordance with the law, in pursuit of a legitimate aim and necessary to a democracy such as ours. It would be impossible to argue that we had given due consideration to whether disclosure in a specific case has met that Article 8 test if we were making blanket disclosures on a publicly accessible register.
I understand the point the noble Lord, Lord Lucas, is making. There are to be some intense practitioner discussions on this. The likelihood is that there will have to be a proper process put in place to carry out auditing and monitoring and to ensure that there is transparency in record-keeping and so on, but we could not accept the amendment in any event because of the ECHR considerations. Perhaps that will not satisfy the noble Lord, but the approach he is suggesting we adopt is flawed, even though we will clearly have to have proper record-keeping and monitoring to make this process effective and seen to be so.
While I fully understand the family considerations which moved the most reverend Primate the Archbishop of York and the concerns of the Minister about compatibility with the European convention, I am not sure whether the issue is open and shut. I confess that I have not done a lot of homework on it but there seem to be two competing features. For all that these are civil orders, they are likely to be found to be broadly criminal in European convention terms and such proceedings are normally conducted in public. I cannot remember to what extent Criminal Records Bureau information is available to the public; it may not be, but it is certainly available to authorities. I ask the Minister to go back over that ground and give us chapter and verse on Report on convention compatibility.
I am extremely grateful to the Minister for his reply. I agree with the most reverend Primate the Archbishop of York that making this public is contentious. I put it in the amendment because I wanted it discussed. The implication of what the Minister has said is that these will be secret trials; the public will not be admitted to proceedings, which will be conducted in the dark. We will not know, in a public sense, what use is being made of such orders. Either they are private or they are public. If they are not to be on a public register, presumably they must not be public in any way, otherwise one could merely compile such a register off the internet. Exactly how these orders will be dealt with must be explored. Perhaps I can pursue this with the Minister by way of letter.
I am happy to have further discussion outside the Chamber so that we can explore the issues in the intricate way the noble Lord seeks. I am sure that in the end we can satisfy him about what we are trying to achieve in putting together information in an orderly fashion and making sure that it is open and usable, certainly for law enforcement agencies. The issue of individual cases and named persons is separate, and we will have to treat it with great care. The noble Lord has made an important case and I have listened carefully to what the most reverend Primate and others have said. I think we can go some way towards satisfying the noble Lord.
I had understood that this was a probing case. Was the noble Lord struck by the apparent paradox in the Minister’s assertion of a possible breach of Article 8 and incompatibility with the convention with the arguments that have been deployed in reverse in respect of other clauses in the Bill?
I shall consider that when I read the Minister’s remarks. I am not about to leap to a hasty conclusion; we have done enough dividing for the day, and I do not think I would enjoy the same majority.
If there is a public trial, then it is public. The person’s name and address may not be put on the register but who the order has been made against will be a matter of public record. I want to make sure that the information is available in one place and that we are not told that no central record is kept and there is no clear answer. I understand what was said about these things potentially being extremely damaging to innocent people and am happy to pursue this with the Minister between now and Report.
What is currently in force is a reflection of the potency of the orders against innocent people. I do not want these things to hang around on someone’s record if they have been removed. If you no longer think someone a danger to the public, why should that information be on an easily accessible register? You may say, “We didn’t like him 30 years ago but he’s all right now” but his name still appears on the register. If there is no conviction, although the matter is still on record, it should not be publicly available.
My main reason for putting this amendment down has been shared by several other noble Lords. I want to be sure that there is a good source of information easily available to us on how these orders have been used. I have not had the answer I wanted; if I do not obtain satisfaction from the Minister between now and Report and if I can obtain the support of my Front Bench, I will certainly come back on this issue. We must be able to know what is being done in our name. To leave it to some vaguely defined feeling that, to paraphrase the Minister’s reply, we ought to have records so something will probably emerge, will not be enough. But for now, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 6 agreed to.
Clause 7 [Other exceptions]:
64: Clause 7 , page 6, line 30, at beginning insert—
The noble Baroness said: I shall speak to Amendments Nos. 65, 66 and 130 as well. Clause 7 provides that the Secretary of State may, by order, expressly exclude the application of a serious crime prevention order to those people who fall within a specified description. The order is currently subject to the negative resolution procedure. Our amendment has adopted a probing approach and would make the process subject to the affirmative procedure. We have tabled it simply to ask the Government which classes of people might be added in the future by this procedure. At present, the only class specifically excluded in the Bill is those who are under the age of 18.
The fifth report of the Delegated Powers and Regulatory Reform Committee states that it is common practice for powers to except from a statutory regime and common practice that the powers should be subject to the negative procedure. We recognise that, and we are not contesting the procedure in this case; even though we have tabled this amendment, it is probing. However, I wish to follow up the committee’s observation at paragraph 8 in particular, when it states that the memorandum from the Home Office says that,
“there may be certain persons that should not be capable of being subject to a serious crime prevention order because it would not be appropriate for them to be so subject. The House may wish to seek a fuller explanation of the Government’s intentions for the use of this power”.
I certainly would like a fuller explanation. I agree with the committee that the Government have not yet given further information; the memorandum could hardly be more vague on this point, hence these amendments.
Might the Government, for example, consider exempting those who have a history of mental incapacity, to return to some of my earlier concerns? At the moment, the answer that was given by the Home Office in the memorandum to the Select Committee appears to undermine some of the arguments that were used against me earlier in terms of a person’s mental state and the issue of intent. I feel sure that that is not the objective of this part of the Bill, but it is important for the Government to flesh out which categories of people they think could have this blanket exemption in future. I beg to move.
The amendments have our support. It is right that serious crime prevention orders should be made by statutory instrument subject to the affirmative resolution of Parliament. Amendment No. 66 also is to be supported. It would ensure that those who have a history of mental illness and mental incapacity could not be subject to a serious crime prevention order.
Well, I have to deal with the rumbling-tummy brigade as well.
I shall deal first with Amendment No. 66. It would mean that anyone who had a history of mental illness or mental incapacity could not be the subject of an order. It would make similar provision to that which already exists in Clause 6 for those under the age of 18. We have some sympathy with those who want to make similar provision here. However, I would like to take this amendment away for further and perhaps fuller consideration. I make a commitment to come back to the House on this issue on Report. I hope that that offers comfort to noble Lords who are concerned about that.
Amendment No. 65 would make the order-making power in Clause 7 subject to the affirmative rather than the negative resolution procedure. The negative resolution procedure is appropriate for this type of order-making power, but perhaps it would be helpful to explain why it is necessary in this clause. The reason is simply this: these orders can be imposed on all persons, whether they are individuals, bodies corporate, partnerships or other unincorporated associations. It is not possible to say categorically that a type of legal person will not be created in the future for whom it would be wrong or inappropriate to grant an order. The clause allows the Secretary of State to make an order that certain persons specified in the order cannot have an order imposed on them. For that reason, we cannot accept and must resist the amendment.
I can say of Amendments Nos. 64 and 130 only that they are consequential. The two amendments to which I spoke first follow from them. We shall take away Amendment No. 66 for further thought and come back to the House on it on Report, but we must continue to resist Amendment No. 65.
I am grateful to the Minister for his indication of the Government’s approach to Amendment No. 66. It was brought forward in the spirit of not wishing to undermine the Government’s approach on intent. I made it clear earlier that I am carefully considering our position on that before Report. I was seeking for the Committee to consider which category of persons might properly be completely excluded. This was the only category that I could come up with which might properly be defined and definable, without spreading the exemption too far. I am grateful for the Minister’s indication that he will give it further thought.
I was not at all surprised by his response to the affirmative resolution procedure amendments. They were tabled only for the purposes of probing. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 65 and 66 not moved.]
Clause 7 agreed to.
Clause 8 agreed to.
67: Clause 9, page 7, line 2, leave out subsections (1) to (3)
The noble Lord said: We were promised by the noble Lord, Lord Bassam, that the debate on the next set of amendments would be long. However, although the point looks extremely complicated, it is in fact very simple.
It may have occurred to the Government that we are rather opposed to the idea of these serious crime prevention orders, especially when they are imposed by the High Court in the circumstances set out in the Bill. I have decided that I am not going to use the words “house arrest” any more, because the noble Baroness has—
Yes, admonished me and indicated over and over again that house arrest is not involved. So in conjunction with the noble Baroness, Lady Anelay, over dinner, I decided that another acronym would be more appropriate. I thought of CODPO—that is, a confinement to domestic premises order—or, possibly, a POTODPO, which is a prevention of travel outside the domestic premises order. One or other of those acronyms is, I am sure, much more suitable and acceptable to the Minister.
I turn to the group of amendments with which we are dealing and the notice that we have given of our intention to oppose many clause stand part questions in this part of the Bill. We have sought to confine the making of an SCPO, or CODPO, to the Crown Court, and only in circumstances in which a person has been convicted of an offence. The making of an SCPO might be more acceptable if a person has been convicted of a serious criminal offence and the Crown Court judge, who has heard all the evidence and come to a conclusion about the case, decides that, as part of the criminal sentence, he should issue a SCPO that would restrict the activities of the offender on release. That would mean that these orders would comply with what the Americans call due process and what we call the European Convention on Human Rights, in that they could be imposed only on proof on a criminal standard of specific offences. On that basis, we would find an SCPO more acceptable, although for other reasons we think that the whole concept is shot through with difficulty. I beg to move.
I intervene only to say that I am very sorry that I was not able to have dinner with my noble friend and the noble Lord, Lord Thomas. I am fascinated to hear of the new suggestion that the noble Lord puts forward that the order should now be called a CODPO.
I thank the noble Lord, Lord Thomas of Gresford, for the brevity with which he outlined his amendments. With the greatest regret, I must tell him that I find the new shortened form no more attractive than the last, but I am confident that the noble Lord will continue to try.
Amendments Nos. 67, 71 and 73 follow on from our earlier debate on amendments and clauses stand part relating to the making of orders in the High Court. I understand, now that the noble Lord, Lord Thomas of Gresford, has made it clear, that he on behalf of the Liberal Democrats does not find these orders as attractive as we do, but I hope that his conversion is still possible.
Amendment No. 67 would remove the subsections in Clause 9 that provide the right for third parties to make representations in the High Court and Amendment No. 71 removes the reference to Clauses 20 and 21 from Clause 9(4). Those provisions relate to the Crown Court varying an order made by the High Court. Amendment No. 73 would remove Clause 9(5), which allows third parties to make representations at an appeal. Although subsection (5) is relevant to the Crown Court as well as to the High Court, I gather from the noble Lord’s amendments that he wishes to expunge the High Court from any involvement at all in the making of these orders. Amendments Nos. 80 and 81 are similar in intent in that they provide for some of the consequential amendments that would be needed if the order-making power in Clause 1 were removed. I know that it will not surprise the noble Lord if I tell him that I must resist these amendments, as I have already made clear the necessity for the orders to be available in the High Court.
The clauses touched on here provide the framework for the effective operation of the serious crime prevention orders. Clause 16 is necessary to provide for a maximum length of time for which an order may be enforced. It also provides for flexibility in determining when different terms of the order come into force, allowing the courts to specify such depending on the circumstances under consideration. So, for example, where the subject of the order is serving a prison sentence and is released during the lifetime of the order, it may be appropriate to specify terms in the order that are neither appropriate nor necessary while he is in custody.
The noble Lord believes that unless an individual himself has been convicted of an offence and the court, at the time of the individual's conviction, is of the view that a prevention order should be made, then no order preventing the criminal acts of serious criminals should be made at all, notwithstanding the fact that one has identified a way in which crime can and should properly be prohibited in the future. The Government cannot agree with that view. The evidence that we have to date is that most serious criminals tend to be serial offenders. There is a high degree of recidivism among those who engage in serious crime as a way of being. If we are to interdict their criminal activities, we have not only to catch and convict them but also to take steps to better prevent them from engaging in those sorts of activity.
Clause 17, which provides for variation, clearly shows why that is important. However, the first exception to the High Court in Clause 17 is that the Crown Court can vary an order if it convicts a person of a serious offence and an order has already been imposed on them. The second exception in Clause 17 is that the Crown Court can vary an order if it convicts a person for breach of an order. Under this clause, the subject of an order can apply for his order to be varied if there has been a change in circumstances affecting the order which means that the order or any terms of it are no longer appropriate. Where the terms of the order are no longer reasonable or proportionate, the High Court will amend them accordingly.
Clause 17 also provides for the relevant applicant authority to make an application for variation at any time, not just where there has been a change of circumstance. This provides a means of ensuring that the orders maintain their focus and specificity throughout their life, ensuring that protection of the public afforded by the orders is maintained. An application by the relevant applicant authority could seek to make the order more as well as less onerous. We have already discussed why placing an obligation on the applicant authority would be both impractical and unnecessary. The clause builds on the safeguards for third parties in Clause 9 by providing them with an avenue to apply for variation.
I am surprised that the noble Lord and, therefore, I take it, the Liberal Democrats are not attracted by this very careful and effective method of modification. The Committee will know that, if an individual was not involved, he can make an application, even if there has not been a change in circumstances, but only if it was reasonable for him not to have been involved sooner. We believe that that is reasonable. This second part of the test ensures that a third party who is not aware of the order until after it is made has an opportunity to put his case. This clause is a necessary and balanced approach to ensure that the orders can be kept up to date to protect the subject of an order from unreasonable conditions where circumstances have changed and to ensure that the public are protected as effectively as possible.
Clause 18 provides a similar function to Clause 17 but in relation to an application for discharge of an order. I have already alluded to Clauses 20 and 21, which provide a power for the Crown Court to vary an order where the subject has been convicted either of a serious offence or of the offence under Clause 25 for breach of order. I appreciate that the noble Lord may simply have grouped all these amendments together to make a point, but one sees how necessary it is to look with great care at how these clauses link together.
We have dealt with Clause 23 and the reasons for Clauses 33, 34, 35 and 36. All these deal accurately and well with some of the difficult issues that the court will have to bear in mind before making an order. I ask that these orders should be agreed to and that the noble Lord thinks again about whether it is appropriate to strike out these parts of the Bill as he seeks to do by virtue of his amendments.
The noble Baroness has gone through the various clauses to which we object. It would take far too long for me to go through them individually. However, we should look at Clauses 33 and 34. Clause 33 states:
“Proceedings before the High Court … are civil proceedings. One consequence … is that the standard of proof to be applied by the court in such proceedings is the civil standard of proof”.
In Clause 34, proceedings in the Crown Court are civil proceedings. The same civil standard of proof is to be imposed. There are two further consequences: the court,
“is not restricted to considering evidence that would have been admissible in the criminal proceedings in which the person concerned was convicted; and … may adjourn the proceedings in relation to a serious crime prevention order even after sentencing the person concerned”.
That indicates the breadth of the proposed orders and the foundations on which they will exist. They are designed to deal with people whom the police suspect of having committed crime that they cannot prove.
The enforcement provisions in Clause 25 mean that a person who fails to comply with a serious crime prevention order obtained in these ways—civil standard of proof, civil evidence, hearsay, tittle-tattle, rumour or whatever—can then be locked up for up to five years or fined. That is a way of getting around due process, which is fundamental to justice in the criminal courts of this country, to drag people into prison when the prosecuting authority cannot prove their case. It is iniquitous, and at later stages we will pursue our objection to these clauses and to the whole concept of misusing civil proceedings in the way that this Bill envisages. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
68: Clause 9 , page 7, line 5, leave out “a significant” and insert “an”
The noble Lord said: I will speak also to Amendments Nos. 69, 70, 72, 77 and 78. The amendments all remove “a significant” or “significantly” as appropriate, and probe exactly what “significant” means.
When third parties are given sufficient rights of representation as to the impact of making an SCPO, or what we have decided might be called a CODPO, on a person, it is important to know how “significant” bites. Clause 9 provides something of a safeguard for third parties, where the making, variation or discharge of an order, or not making any changes, would be likely to have a significant adverse effect on them. The court is given the power to allow third parties to make representations about how the order would affect them, so that they may be taken into account if and when the court makes, varies or discharges any order.
The test of whether a third party may make representations is set high. The Bill states that the impact on them must be “a significant adverse effect”. We would like to know how the Government intend “significant” to be interpreted. Do people have to be facing bankruptcy, as one example, as a result of the order? What level of financial loss, immediate or long term, does there need to be? Does their personal liberty have to be infringed so severely that they cannot lead their usual personal family life? What examples can the Minister give of the Government’s thinking on this that determined the drafting of the clause?
The route to the drafting in the Bill seems to be littered with half considered and rejected alternative proposals. The consultation paper, New Powers Against Organised and Financial Crime, which the noble Baroness will remember, accepted that it would be important that the courts are made aware of the possible impact of orders on the rights of third parties. The Government said that they were considering whether that would require including something in the Bill requiring the court to take due account of the rights of third parties as in United States legislation; the civil RICO—Racketeer Influenced and Corrupt Organizations Act. They also said that they were considering whether this was already implicit in the regime imposed by the Human Rights Act.
The Government then proposed that a simpler alternative might be for the legislation or the rules of court to state explicitly that the authority applying for the order should draw to the court’s attention relevant facts about the possible interests of third parties. The results of the consultation showed that the vast majority of respondents felt that it was vital to ensure that the rights and interests of third parties were properly protected in considering the granting of an order. The understandable concern expressed by respondents was that if this did not happen, an entirely innocent third party could be unreasonably affected by the imposition of an order on an individual or an organisation.
The Government’s stated solution was to amend the Civil Procedure Rules to provide that prosecutors, when applying for a prevention order, must make an assessment of the proposed order’s potential impact on third parties and draw this to the court’s attention. What has happened to that proposal? It would have meant that the court would be bound to consider all the facts with regard to the application and to ensure that the terms of the order were such that no third party could be unreasonably affected by that order.
Instead, a statutory requirement is proposed that appears to narrow the circumstances in which a court can take into account whether a third party is adversely affected by the making of the SCPO. What is the Government’s justification for that? How will the proposal ensure that no third party is unreasonably affected by the imposition of an SCPO? I beg to move.
We support these amendments. The amendments that we consider to be most important apply to Clauses 17 and 18. I invite the noble Baroness now to look at those clauses. The effect of using “significantly” is that Clause 17(5) states:
“The court must not entertain an application”,
to vary an order,
“unless it considers that … the person is significantly adversely affected by the order”.
Similarly, in Clause 18, relating to discharge, the same words appear—
“significantly adversely affected by the order”.
We want to know why variation and discharge by someone else who is not the subject of the order has to be subject to the qualification that they must be “significantly adversely affected”. What is meant by that? It is an entirely vague expression and I would be grateful for enlightenment.
I thank the noble Lord, Lord Henley, for setting out the reasons for his amendment; this is a probing amendment, so I shall go through this matter step by step in the hope that noble Lords can better understand the Government’s intention and in the hope that we do not have to return to it at a later stage.
The Bill as drafted provides significant safeguards and protections, especially in relation to ensuring that third parties are not unreasonably affected by the terms of an order. That is the kernel of what the noble Lords, Lord Henley and Lord Thomas of Gresford, are asking in relation to why “significantly” is used.
We hope that some third parties will be disadvantaged by these orders, and I am confident that they will make life significantly harder for criminal associates who would normally work to commit serious crimes with or for the subject of an order—and for that we make no apology, because that is the whole purpose.
However, regarding the other ramifications, it is possible that the proposed terms of an order or the terms of an order already in place will have knock-on consequences for individuals who are not involved in serious crime. It is vital that those circumstances are taken into account by the court when considering whether to impose, vary or discharge an order. As a consequence, Clause 9 allows third parties to make representations to the court in hearings concerning the making, variation or discharge of an order. Clauses 17 and 18 allow third parties, in certain circumstances, to make applications for the variation or discharge of an order.
However, we need to set limits on the rights of third parties, so that the proceedings are not tied up with spurious or frivolous applications. The court should be obliged to hear from only those who genuinely need to be heard. It will be the court that makes the decision as to whether the third party is or is not significantly affected. As a result, Clause 9 sets out that a third party must be likely to be significantly adversely affected by the court’s decision before being allowed to make representations. The courts will be able to make a reasoned decision as to whether an adverse effect is significant on the basis of the application by the third party.
Clause 17 sets out that a third party can apply for variation only if a three-part test is met. First, the third party must be significantly adversely affected by the order. Secondly, one of two conditions must be met: either the third party made representations at an earlier hearing, or an application in earlier proceedings other than under Clause 9, and there has been a change of circumstances affecting the order; or the third party has not appeared in earlier proceedings but he can show that this was reasonable in all the circumstances. Thirdly, the third party must not be applying to make the order more onerous. That test is a very important safeguard and sieve. Clause 18 allows a third party to apply for discharge of the order. The test is the same as in Clause 17 but the final limb does not apply because it is not relevant.
The amendments would change the test in Clauses 9, 17 and 18 to “adverse effect” rather than “significant adverse effect”. The threshold for making an application or being allowed to make representations would, therefore, be lower. We think that the current level in the Bill is the one at which the threshold should be set. If the threshold is set any lower, the court is liable to be overwhelmed with representations or applications; if it is set any higher, the court will not hear from those who have a genuine interest in the outcome of the hearing or those who should be in a position to make applications.
It would not be sensible to allow people who have been negatively affected only in a very minor way to make such representations or applications to the court. For example, an order which required an individual to disclose financial information might have the side effect of stopping him from gambling with the money he had made through exploiting others. That would have a negative effect on his local bookmaker. However, I think we can all agree that that is an insignificant sort of negative effect, and it should not mean that the bookmaker could make representations or applications to the court.
In addition, there will be provision in the application process for the making of an order set out in the Civil Procedure Rules—something to which the noble Lord, Lord Henley, alluded—requiring the applicant authority to bring the potential impact of the proposed terms of an order on third parties to the court’s attention.
Together, these measures will ensure that the courts have the right information in front of them to enable the right decision to be made on what terms of an order would be reasonable and proportionate and on whether variation or discharge was appropriate.
We believe that, as a whole, the Bill successfully balances the need to make the orders effective with the requirement to ensure that the rights of third parties are protected. On that basis, we resist the amendments.
As always, the noble Baroness sounds extremely reasonable and very convincing. However, I am not a lawyer and therefore I find these things rather more complicated than she does. Listening to the first part, at least, of her speech, I turned to Clause 5 and kept asking myself how any of the examples of prohibitions, restrictions or requirements that may be imposed on individuals listed in Clause 5(3) could have anything but a pretty serious impact on people. Then the noble Baroness did what she has done on a number of previous occasions: she produced an example—that of the bookmaker. She argued that that was a case in which someone would not be significantly harmed.
As a non-lawyer, I am very worried about legislation that depends on the giving of examples by the noble Baroness—some openly and others rather more discreetly in correspondence because they may give clues to real criminals about how to get round the Bill. I am worried about legislation that depends on the giving of examples to produce clarity where clarity does not exist in the wording of the legislation. Reading Clause 5(3), it seems to me that almost all those requirements will have a significant impact. It is hard to see how they cannot have a significant impact. Therefore, I still feel very unhappy that the word “significant” should be removed, that somehow the whole thing should be left to trust and that from the point of view of the ordinary individual everything will be all right. The noble Baroness is a reasonable person and she assures us that it will be all right. I am confident that, if the noble Baroness is the person responsible for interpreting the thing on the day, it will be all right because she is an entirely reasonable person, but I am less convinced that that will always be the case in the real world. Therefore, I say to my noble friend that I hope that, whatever he decides to do tonight, he will think carefully about this issue before we return to it at a later stage of the Bill.
We have excluded the bookmaker but whom do we include? Do we include the spouse, the partner, the business partner, the employer, or the employees? Would those people have to show a significant adverse effect of the order? That would be necessary before an application to vary or to discharge would be entertained. It means that an applicant walks into a court and a judge says, “You are not a business partner, a spouse or a partner so I shall not even entertain your application for variation or discharge”. It is a threshold test; it is very odd. Normally a judge would entertain an application and hear it on its merits, but here he is not even allowed to entertain it if the person concerned comes into this vague category of someone who is not significantly adversely affected by the order.
Let us put the bookmaker to one side and find out who this is aimed at. Who are the third parties? People in this country do not go around talking about third parties, saying, “I am a third party”; they say, “I am a wife”, “I am a husband”, “I am a partner” or “I do a job”. In putting forward these sorts of clauses, are those the people whom the noble Baroness has in mind? What does “significant” mean? Does it mean that they have to show that they are losing all their income or half of it, or if they are a spouse that their whole means of support has gone and that they would not qualify for certain benefits? What is it all about?
Can the Minister explain something that I do not understand. How does the third party in Clause 9 know that that is all going on? Apparently he has to make representations during proceedings in the High Court, but how will he know that is going on? Obviously if one is the husband or the wife or whatever, one will know, but one might not be aware. Will it be advertised? How will a person know?
The noble Lord, Lord Crickhowell, makes a very powerful point. I remind him that the Government are not proposing to expunge the word “significant”. That is the purpose of the amendment. We believe the word should be there. If one looks at the kind of orders that the noble Lord indicated in Clause 5, one can see how they can have a significant adverse effect on a number of individuals and businesses that may be dealing with the individual concerned.
The fact of the matter is that the word “significant” is there not to be helpful but to restrict; you will be able to make your case only if the change will be “significant”. My argument was that all the things in Clause 5 are significant, and the Minister is therefore not answering my point.
I disagree with the noble Lord. His point is that if all those things are significant, then the person who can show that they are adversely affected in a significant way would be able to make an application.
I shall explain the process. I am sure that the noble Lord, Lord Thomas of Gresford, never intends to mislead the Committee; that is the furthest thing from his mind. However, one must think about the process. Before the High Court can reject an application to join as a third party, it will have to hear it. An individual will make an application in which they will say, “I believe that I have been significantly adversely affected by the making of this order in the following terms; namely”. They will have to set out, in accordance with the three tests I referred to earlier, how they sit within it.
The court will then have an opportunity to read and hear about what the applicant says entitles them to become a third party in the proceedings because they have been adversely affected. It will then be for the court to determine—bearing in mind the nature of the conditions, the content of the order made against that individual and the nature of the concerns referred to in their application—whether or not they meet the threshold of the court thinking it appropriate for them to be joined as third parties, so that the court can determine whether, in the interests of justice and all the parties concerned, it is appropriate to vary, or otherwise dispose of, the orders or conditions attached. It is not, as the noble Lord, Lord Thomas of Gresford, says, that people cannot make an application. They get an opportunity to do so and to have their say. The court will then get a chance to determine whether the application falls within the category of “significant” issues.
It is important for us to bear in mind that whether a person has been negatively affected in a way which the court considers “significant” will quite often be a question of fact, capable of determination, and on which the court can make a judgment. It is therefore likely that these applications can be dealt with appropriately. However, it must be important for the court to determine when someone is affected in a minor, insignificant way, insufficient to entitle them to become a third party. The court should properly be entitled to exclude them from being third parties in those circumstances.
The conditions to be attached to the order will address the mischief identified by the authorities. That is why it is important that, in the civil rules, the authority will have to satisfy the court as to the nature of the order, which third parties may be adversely affected and what steps have been taken to notify or otherwise bring them to the court’s attention. Because of the way in which the investigation was carried out, there may be people who were lawfully carrying out a business which might indirectly be affected by a condition that has been made, but who were not brought to the court’s attention at the time the order was made. It must be right for such a person, when they become adversely affected—that is often how they will find out if they are not told; something will happen to how they do their business and they will realise that they are—to be entitled to go to the court and to say, “I wasn’t given notice about this. It impinges on me in a significant way. These are the facts I complain of. I wish to be joined as a third party and considered in relation to modification or change of an order, made without my knowledge, by which I have been affected”. We think that process is fair and just, but it must be open to the court to say that in those circumstances it does not deem him to be significantly adversely affected because the effect is minor, that he should not be a party and that it will not entertain him.
In civil proceedings, the High Court is used to third party applicants making an application to join an action because they have a legitimate interest in it. On a daily basis, the High Court has to come to a judgment about whether those parties should properly be joined in the proceedings. Notwithstanding the fact that the noble Lord spent perhaps the majority of his career in the criminal court, I am sure that he must have trespassed into the civil court on occasion. If he did, I am sure that he will be able to confirm the assertions I have made.
I declare an interest as a former deputy High Court judge who sat in civil proceedings many times. For the record, I shall ask the Minister a question. There is another threshold test—a change of circumstance. Would it be a change of circumstance if a third party realises that his interests are adversely affected and makes an application to the court? Or would the court say that he has made his application and could have made it at an earlier stage if he had known about it, but there has been no change of circumstance in relation to the offender? Is the third party having notice of the proceedings a change of circumstance?
It is not a change of circumstance but, as I tried to make clear, if the third party had not been involved initially and becomes aware that he is in a position to have been affected, he can use that fact to go to the court to say that, notwithstanding the fact that he was not involved before, he would like to be involved. If he had had the opportunity and knowledge and failed to do that, the court would take that into consideration in making its decision about whether it was reasonable to allow him to join and whether he was significantly affected. I hope that when I was going through this I was clear about the different circumstances in which an individual can come forward.
I thank my noble friends Lord Crickhowell and Lady Carnegy and the noble Lord, Lord Thomas of Gresford, for their interventions. I do not think the Minister answered our question about exactly what “significant” means. Towards the end of her speech, she seemed to be getting very close, and I want to look at her words very carefully. The Minister knows perfectly well that this is a probing amendment and that we do not want to take out those words until we know exactly what they mean, but it is important that the Government tell us what they mean—there might be Pepper v Hart implications in this. I will look carefully at what she said, particularly at what she said in her three or four sentences before the intervention by the noble Lord, Lord Thomas. I might look at everything else she had to say, which is probably equally important. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 69 to 73 not moved.]
Clause 9 agreed to.
Clause 10 [Notice requirements in relation to orders]:
74: Clause 10 , page 7, line 34, at end insert “and he has deliberately absented himself from the proceedings at which the order or (as the case may be) variation is made”
The noble Lord said: In moving Amendment No. 74, I shall speak also to Amendment No. 75. We are concerned by the proposition that a person can have an SCPO imposed on them in their absence. Clause 10 makes provision for ensuring that the subject of an order knows that there will be a court hearing. But it makes clear that an order will not necessarily be made in the presence of the subject of the order.
For an SCPO to be made, one of the following tests has to be satisfied: that the person has been represented in the proceedings, either by himself or by somebody else; that a notice of the hearing has been served on him personally; or that a notice of the hearing has been sent by recorded delivery post to his last known address.
It is therefore perfectly possible to have a situation where someone is made subject to such an order with no knowledge of the hearing—for example, if they had moved, were away or if the notice had gone astray in the post.
I fully accept that if a person deliberately absents themselves from a hearing, the court should be empowered to proceed. But why is it right to provide specifically for proceedings to continue in the respondent’s absence where that absence is not intentional? It seems at variance with the stance taken in Clause 9 where the court must give third parties the right to make representations in specified circumstances. Presumably that means that if they do not turn up at a hearing, the court would have to delay its decision until the third party was able to attend and make his or her representation.
I would be very grateful if the Minister could consider further the implications of Clause 10 and make provision for the order to be made in the person’s presence unless he has deliberately absented himself. I beg to move.
We support the two amendments. They deal with the notice requirement of an order. I am sure these amendments introduce further safeguards and that the Minister will wish seriously to consider them.
Two aspects are of interest. At present the subject is represented in person or otherwise or the notice of variation has been served on him. The further safeguard is that the hearing can proceed if the person has deliberately absented himself from it.
Amendment No. 75 is also very helpful. It further clarifies that the notice is delivered directly to him. I know that safeguards are introduced about how the notice will be served, but there needs to be some assurance that the person to whom the notice has been served is the correct person.
I understand why the noble Lord has tabled these amendments, but we do not think that they are necessary. Clause 10 already provides the certainty we need because the Bill is very clear that a person subject to an order is to be bound by it. Clause 10—as I think the noble Lord, Lord Henley, has identified—provides that the subject of an order is bound by it only in one of two circumstances. The first circumstance is when he is represented at the hearing where the order is made or varied—and that can be in person, through a person's solicitor or some other form of representation; the second is where a notice setting out the terms or the variance of the order has been served on the person. That can be either by delivery in person or recorded delivery to the person's last address. Noble Lords will know that this is a familiar form and consistent with the High Court procedure rules. It is important, therefore, to look at this clause alongside Clause 25(1), which states that breach of the terms of an order is a criminal offence only where there is no reasonable excuse for the breach.
If the subject did not know the terms of the order, he is likely to have had a reasonable excuse. To require the applicant authority to show that the subject of the order has deliberately absented himself from the procedure, as proposed by Amendment No. 74, is unnecessary. Therefore we cannot accept it. What is important is whether the subject knew of the terms of the order. If he did not, the defence in Clause 25(1) will apply.
We believe that Amendment No. 75 is also unnecessary, for the same reason. It will be important to allow law enforcement to effect service in some other way than in person. Unsurprisingly, such people will often try to avoid law enforcement. Again, if the person can show that he did not know the terms of the order through a failure in the service, the defence in Clause 25(1) will apply.
For those reasons, we believe that the provisions in the amendments are unnecessary, but I hope that I have been able to clarify why we believe that that is so. Any application to the High Court would be bound by the Supreme Court rules that apply to each and every application made before the High Court.
76: After Clause 16 , insert the following new Clause—
“Obligation to vary or discharge order
(1) The relevant applicant authority shall apply to the High Court in England and Wales to discharge a serious crime prevention order if there has been a change of circumstances which means that the order is no longer necessary to protect the public by preventing, restricting or disrupting involvement, by the person who is subject to the order, in serious crime in England and Wales.
(2) The relevant applicant authority shall apply to the High Court in England and Wales to vary a serious crime prevention order if there has been a change of circumstances which means that the restrictions, prohibitions or obligations on the order are no longer necessary to protect the public by preventing, restricting or disrupting involvement, by the person who is subject to the order, in serious crime in England and Wales.
(3) The relevant applicant authority shall apply to the High Court in Northern Ireland to discharge a serious crime prevention order if there has been a change of circumstances which means that the order is no longer necessary to protect the public by preventing, restricting or disrupting involvement, by the person who is subject to the order, in serious crime in Northern Ireland.
(4) The relevant applicant authority shall apply to the High Court in Northern Ireland to vary a serious crime prevention order if there has been a change of circumstances which means that the restrictions, prohibitions or obligations on the order are no longer necessary to protect the public by preventing, restricting or disrupting involvement, by the person who is subject to the order, in serious crime in Northern Ireland.”
The noble Lord said: As a prelude, I shall refer to the discussion that we had on the evening before our first sitting in Committee, on 6 March. I put on record in our debate on 7 March how grateful I was to the Minister for organising that briefing. I wondered whether between Committee and Report she would consider reconvening the meeting to discuss one or two issues of tension with the individuals who came with her last time. She seems to be nodding and I am grateful to her.
The amendment has been suggested to us by Liberty. It would require the relevant prosecuting authority to apply to the High Court for the variation or termination of the order if a change of circumstances,
“means that the order in its current form is no longer necessary to protect the public by preventing, restricting or disrupting involvement ... in serious crime.”
The Government have placed great emphasis on the fact that serious crime prevention orders would be made by the High Court rather than, as in the case of anti-social behaviour orders, lower courts or, in the case of control orders, the Home Secretary. It is argued that that would protect against inappropriate use of SCPOs. However, there are several major problems with that argument. As we have discussed, regardless of the quality of its judges, the court can work only within the boundaries set in laws passed by Parliament. It cannot transform unfair and unjust laws that may not be compliant. This amendment deals with a more practical, although important, weakness of the system which the involvement of the High Court would not remedy. The High Court can consider only the necessity of an SCPO and the proportionality of the obligations and restrictions it imposes when a case is brought before it, for example when the application for the order is initially made or when a person applies to vary or discharge the order. The High Court could not reasonably be expected to monitor the SCPO for the duration of its existence in order to ensure that the conditions it imposes remain justified and proportionate. This would mean that if a change of circumstances made the order unnecessary or rendered its terms unjustified or disproportionate, the order would nevertheless remain in force with the same restrictions or obligations. As the maximum duration of an order is five years, such changes of circumstance are likely.
In the context of control orders, the noble Lord, Lord Carlile, has stressed the need for regular review to ensure that the order imposed remains proportionate. His first report was as independent reviewer, pursuant to Section 14(3) of the Prevention of Terrorism Act. At paragraph 45 of the review, which was published on 2 February 2006, he stated:
“The key to the obligations is proportionality. In each case they must be proportional to the risk to national security presented by the controlee. The minimum obligations consistent with public safety are the only acceptable basis for control orders … Last year I recommended the establishment of a Home Office led procedure whereby officials and representatives of the control authorities meet regularly to monitor each case, with a view to advising on a continuing basis as to the necessity of the obligations imposed on each controlee”.
In the Bill, as in the context of control orders, there is a restrictive power for the person subject to an order to apply for the order to be discharged or varied. This is, we contend, insufficient. Where the state imposes restrictions on a person’s rights and freedoms, the state should ensure that these are justified and proportionate. It should not be left to the individual in question to demonstrate that the restrictions are no longer justified or proportionate. The amendment would require the prosecuting authority to apply to the court for the variation or discharge of an order where there has been a change of circumstances.
A practical problem with relying on the person subject to an order to apply for its variation or discharge is that he or she will not always know when there is a change of circumstance. The prosecuting body may have access to intelligence or evidence showing a change of circumstance, but this may well not have been disclosed. Let us assume, for example, that a bank was subject to an SCPO because it was believed to be facilitating the financing of terrorist groups overseas. That group may have been broken up by an overseas law enforcement agency without the knowledge of the bank, meaning that the SCPO is no longer necessary. In such a case, the individual should not be expected to apply for the order to be discharged. I beg to move.
Let me say straightaway to the noble Lord, Lord Burnett, that I agree with the spirit of the amendment, which would ensure a means of amending or discharging an order, but the amendment is not necessary because we have already made provision for this in Clauses 17 and 18. We believe that those clauses ensure that we avoid a situation where an order becomes unreasonable by virtue of no longer being relevant. Perhaps I may say with respect that the noble Lord’s amendment would make the scheme in relation to these orders impractical, because it would place an obligation on the applicant authorities to apply for a variation or discharge of an order where there has been a change of circumstance which makes the order or particular terms of it no longer necessary, but that change of circumstance may be in the peculiar knowledge of the individual who is adversely affected or constrained by the order. It would mean that when the applicant authority did not make such an application because it was not aware of the change of circumstance, it would be in breach of a statutory obligation. Clauses 17 and 18 emphasise the need for the authorities to come back in relation to these matters where appropriate.
The party to the order-making process who is best placed to determine whether there has been a change of circumstance relative to the order may well be the third party themselves. Where such a change has occurred, the Bill provides a means for them to apply to the High Court, as the noble Lord has directed. Under Clauses 17 and 18 it is open to the relevant applicant authority to make an application for variation or discharge at any time, regardless of whether there has been a change of circumstance. Further, the relevant applicant authority will keep the orders under review and make applications when appropriate. That, I think, is really what the noble Lord wants to ensure. What we have provided for here is to ensure that the person who knows of the change is in a position to apply for a variation or discharge. If that person happens to be the individual affected by the order and there is a change of circumstance, they can make the application. If the relevant applicant authority comes to the view that there either is a change in circumstance or some other reason why the order is no longer appropriate—it may not have been a change in circumstance for the individual but, as the noble Lord has alluded, some other relevant circumstance may make it appropriate—it can apply to have the order discharged. Further, as I have said, we will keep this under review.
I am extremely grateful to the Minister for her response but, to be a little more precise than perhaps I was in my opening comments, we are seeking in this amendment to provide that the authority must make an application if there is a change in circumstance, not that it may do so. I have heard what the Minister has said and we shall reconsider the matter.
I should like to ask the Minister a question. She has said, by reference to Clause 17, that it is open to the person who is the subject of the order to make an application for a variation to it. But Clause 17(4) states that:
“The court must not entertain an application by the person who is the subject of the order unless it considers that there has been a change of circumstances affecting the order”.
From that it rather looks as though the use of “entertain” means that it may not give a hearing to such an application until the court itself is satisfied that there has been a change of circumstances. This is not quite as straightforward as I understand the noble Baroness to say and I wonder whether the noble Lord who has moved the amendment, and who has been very courteous in allowing me to intervene, would think it right to endorse this question.
I entirely endorse what the noble and learned Lord has said, and with his wealth of experience on these matters I am grateful to him for his contribution. Our amendment is a duty on the prosecuting authority to monitor these orders. Furthermore, if there is a change of circumstances, that prosecuting authority should apply to the court for a variation or discharge. I wonder if the Minister would like to advert to the points made by the noble and learned Lord.
I turn to the noble and learned Lord’s question. Clause 17(4) refers to the circumstances in relation to the person who is subject to the order, unless it is considered that there has been a change of circumstances affecting the order. That is really to prevent the court having to try the whole issue again if there has been no material change in the circumstances upon which the original order was made, so that the applicant in making their application would have to satisfy the court, before it would be entitled to vary, that there had been a change of circumstances from the time and the facts that had been complained of and asserted when the original order was made. It is variation that would be looked for. This would not be an appeal process; it would be a variation or discharge based on a change of circumstances.
It probably comes down to the procedure that would need to be adopted. Before the court heard or listed the application, the applicant would have to make, in essence, an application wherein they would set out the grounds upon which they asserted there had been a change of circumstance that justified the court hearing an application for variation. If on the face of the document produced by the applicant there had been no material change in circumstance to justify such an application, the court would not entertain one because there had been no change of circumstances. That is the way it would have to work. It gives the court control of whether it thinks an application is merited.
It is a bit like an application for leave. To make an application for leave you set out the basis on which you assert that leave should be granted for an application to be made; the court looks at your application and makes an order. So far as I am aware, we have not yet produced any of the rules in relation to making applications because that would be presumptuous until the Bill comes through, but I respectfully suggest that the noble and learned Lord thinks about how the Supreme Court rules work at the moment; I anticipate that the procedure we will adopt will be very similar to that. It would have to be transparent and fair, and to have enough information to enable the court to come to an informed judgment; if not, I imagine, it would be capable of challenging the process. We have not got the rules yet, but that is how we anticipate it will work.
No doubt those who make those rules will have the misfortune to have to read our proceedings—although that does not apply to what the noble and learned Lord, Lord Mayhew, said, which was very compelling. I am grateful to the Minister for her reply. We reserve our right to raise these matters again on Report. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 17 [Variation of orders]:
[Amendment No. 77 not moved.]
Clause 17 agreed to.
Clause 18 [Discharge of orders]:
[Amendment No. 78 not moved.]
Clause 18 agreed to.
Clause 19 [Orders by Crown Court on conviction]:
[Amendments Nos. 79 to 81 not moved.]
Clause 19 agreed to.
Clauses 20 to 25 agreed to.
Clause 26 [Powers of forfeiture in respect of offence]:
82: Clause 26 , page 15, line 28, leave out “considers to have been” and insert “has reasonable grounds for believing was”
The noble Lord said: This is a purely probing amendment about the level of proof the court needs to find before it makes a forfeiture order.
Clause 26 gives the court the power to order forfeiture of any item in the possession of the person who is made the subject of an order and who then breaches the order, thereby committing a criminal offence. The court can order the forfeiture of anything that it “considers” was involved in the offence. We believe that that is rather wide. Our amendment would allow the court to make a forfeiture order where it had reasonable grounds for believing that the item or items were involved in the offence. That seems a more reasoned and appropriate test. I look forward to hearing what the noble Baroness has to say. I beg to move.
I know that the noble Lord, Lord Crickhowell, enjoined me not to use examples, and I am about to do so only to explain why we think the current drafting is appropriate.
We have included the power for the court to order forfeiture because without it, we think we might get some pretty perverse results. Let me give the example of multiple telephones being used in drug transportation or trafficking cases. One of the provisions that the court makes is that the individual involved should have possession of only one mobile to prevent the widespread use of clean and dirty mobiles for personal and criminal business respectively. After the person’s arrest for breach of the order of having more than one mobile and the subsequent disposal of the offence, the police would have to return the other mobiles which the subject had been using to breach the order, as the breach would be having in his possession other mobiles. Not only would the vast majority of people think that this was a rather unusual outcome, it would also mean that the subject of the order was immediately in breach of it again because the police were not able to remove from him the mobiles or the article that caused the breach.
Amendment No. 82 would change the test in Clause 26(1) from a subjective test which the court considers to an objective test where the court has “reasonable grounds for believing”. We believe that the current drafting of the test is more appropriate. The matter is decided by a judge who can be expected to make a reasonable decision based on the evidence and the arguments, without the need to set this out expressly. For that reason, we think that, practically speaking, the clause works as it should. We do not think that this will cause a difficulty for the court. With that explanation, I hope that the noble Lord will feel able to withdraw his amendment.
Perhaps I may correct the Minister on one matter—at least I hope I can do so—because my noble friend Lord Crickhowell has gone. She claimed that my noble friend Lord Crickhowell objected to the use of examples. What my noble friend was objecting to was much the same as that to which my noble friend Lady Anelay was objecting earlier; namely, the use of examples in the Bill. Clause 5 lists all the types of provision that may be made by order. That is an odd procedure to use in Bills. We have no objection whatever to examples being used by way of explanation by the Minister, because she is very good at that, and an example can often help explain exactly what she is getting at. On this occasion, she has done it rather well, because she has persuaded me that the wording that the Government are proposing in Clause 26 is better than our wording. On this occasion, therefore, I shall withdraw my amendment, but I hope she will bear in mind what I said to her about what she said about my noble friend and the use of examples. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 26 agreed to.
Clause 27 [Powers to wind up companies etc: England and Wales]:
83: Clause 27 , page 16, line 28, leave out subsection (6)
The noble Baroness said: I shall speak also to Amendment No. 85. This is the first time that I have taken part in our proceedings on the Bill. I was unfortunately unable to attend Second Reading, but I have studied the Hansard record of that debate and of the first day of Committee, and I hope that my presence this evening will not be taken amiss.
These amendments and those in the next two groups explore the way in which the Government wish to use the winding-up provisions which apply to companies generally for the purposes of combating serious crime. I should say at the outset that we have no problems in principle with using the winding-up provisions in appropriate cases where serious crime is involved; rather, we wish to explore some of the details.
I should express my appreciation to the Association of Business Recovery Professionals, which is more colloquially known as R3, for its helpful advice on these provisions. Amendment No. 83 is a probing amendment. It would delete subsection (6) of Clause 27, which applies to companies registered in England and Wales. Amendment No. 85 would do the same to Clause 28, which applies to companies registered in Northern Ireland.
The greater part of Clauses 27 and 28 concerns companies, but subsection (6) of each clause gives the Secretary of State power to apply the Insolvency Act 1986 or, in the case of Northern Ireland, the Insolvency (Northern Ireland) Order 1989, to relevant bodies. “Relevant body” is defined in subsection (11). I shall come to that in the next group of amendments.
These amendments probe the inclusion in subsection (6) of the words,
“with such modifications as he considers appropriate”.
I turned to the Explanatory Notes to find out more about what was intended, but, as is so often the case with Explanatory Notes, they fail to explain what one wants to know about a Bill. The amendments ask the Minister to set out what modifications the Government believe could be made using subsection (6) and why they are necessary.
The Minister will know that the power of modification, as drafted, is very wide and seems to apply to the whole of the Insolvency Act 1986. Could this power be used, for example, to modify the way in which preferential debts are determined and paid out under the 1986 Act? Will the Minister say whether and to what extent this power is constrained and how any such constraints are enforced?
As I have said, we have tabled Amendments Nos. 83 and 85 on a probing basis. We shall want to consider the Minister’s response very carefully, especially in the light of the fact that the order-making power in subsection (6) is subject only to the negative resolution procedure as set out in Clause 78(6). If the powers are modest, that procedure is appropriate, but if, as seems possible, the powers are extensive, we may want to revisit at a later stage whether the negative resolution procedure is appropriate for a wide power. I beg to move.
We very much welcome the noble Baroness, Lady Noakes, to our company and look forward to her participation in all the parts of the Bill that are relevant to her expertise. It may help if I run through how we see this part working.
Noble Lords will know that a potential consequence for a company, partnership or relevant body convicted for the breach of the terms of an order placed on it will be the winding-up of that body, as the noble Baroness said. A petition will be presented only if it is in the public interest for the winding-up to happen and the court can make an order for winding-up only if it would be just and equitable to do so. To provide for this, we have tapped into the Insolvency Act 1986, which, as the noble Baroness knows, already provides an established framework for the winding-up of a company.
What constitutes a relevant body is set out in Clause 27(11) as:
“(a) a building society (within the meaning of the Building Societies Act 1986 (c. 53));
(b) an incorporated friendly society (within the meaning of the Friendly Societies Act 1992 (c. 40));
(c) an industrial and provident society; or
(d) such other description of person as may be specified by order made by the Secretary of State”.
So it is a very familiar framework.
Clause 27(6), which is mirrored by Clause 28(6) for Northern Ireland, gives an order-making power to allow the Secretary of State to provide the 1986 Act to apply, as the noble Baroness said,
“with such modifications as he considers appropriate, to a petition under this section for the winding up of a relevant body”.
That allows modifications to be made as necessary in order for the 1986 Act to be made to work effectively for these bodies. We have kept within the structure that was already there and provided this power to make modifications in a way that would be consistent with the 1986 Act.
Amendments Nos. 83 and 85 would remove that order-making power. I do not believe that that is what the noble Baroness wants—she just wanted the clarification that the 1986 framework, which has served us so well to date, would be the framework to which we would adhere. I can give her the assurance. As the noble Baroness knows, it is already the case that the Insolvency Act 1986 is applied to mutuals with modifications and mutuals are listed as the relevant body. For example, in Schedule 15 to the Building Societies Act 1986, similar amendments or modifications are likely to be needed for winding-up for convictions for breach of an order under this Bill. I hope that the noble Baroness will therefore be reassured that we do not propose to behave in a way that is outwith that which she would expect.
I am very grateful to the Minister for her response, which I could have anticipated. I was trying to probe how far the power could be used. She said that the power would enable the Act to apply to different kinds of bodies, which I understand, but I was proposing that the power was extremely wide and could be used to change some core elements of the 1986 Act—and, if that were the case, the negative procedure would not be appropriate. Will the Minister clarify whether there are any constraints on how this power could be used? It is the circumscription of the power that I seek to explore—not the existence of the power itself, which the Minister has properly identified.
We think that the modifications would have to be consistent with the Insolvency Act. If we wanted to do anything further than that we would probably have to go back to have a debate—in which I know the noble Baroness would engage—on whether there needed to be changes to the Insolvency Act. That is how we see the provision working, and that is why we think that the negative resolution procedure is perfectly proper.
I am grateful to the Minister for that response. I shall certainly take that back and discuss it with the Association of Business Recovery Professionals. For this evening, I am well content and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
84: Clause 27 , page 17, line 22, at end insert—
“(12) No order can be made under paragraph (d) of the definition of “relevant body” in subsection (11) unless a draft of the order has been laid before, and approved by a resolution of, each House of Parliament.”
The noble Baroness said: Amendment No. 84 is another probing amendment. I shall speak also to the other three amendments in the group.
As the Minister explained, Clause 27(11) defines the term “relevant body”, which is used in subsection (6), and relevant bodies can be subject to winding-up orders under Clause 27. As she also explained, although they are defined largely unremarkably in paragraphs (a) to (c), paragraph (d) gives the Secretary of State the power to add,
“such other description of person as may be specified by order”.
That is in itself a wide power. The Explanatory Notes, again, offer no help on how such a power could be used.
Amendment No. 84 adds a requirement for such an order to be made using the affirmative procedure, and Amendment No. 131 removes the power from the list of negative procedure powers in Clause 76(6). Amendments Nos. 86 and 132 are the mirror amendments for the Northern Ireland provisions.
We are not entirely sure why paragraph (d) is needed at all. Are the Government not able now to define the bodies that they wish to be included in this clause? I assume that the Government have satisfied themselves that all kinds of body currently in existence are within the clause. I assume that the Government are happy that the most recent innovations in the corporate sphere are included; for example, limited liability partnerships under the Limited Liability Partnerships Act 2000 or community interest companies under the Companies (Audit, Investigations and Community Enterprise) Act 2004. I assume that those are included in Clause 27 and will not need to be brought within it using the paragraph (d) procedure. The Minister may also wish to comment on whether and to what extent overseas companies are within Clause 27 without the paragraph (d) power. The question is whether the Government are sure that their current formulation of Clause 27 includes all types of body that should be within the scope of Clause 27. Presumably it should be open to the Government when inventing new forms of body to ensure, if it was deemed appropriate, that the relevant legislation incorporates provisions corresponding to those in Clause 27.
Perhaps I may approach this from a slightly different direction. Clause 27 is fundamentally about corporate or business structures that could be wound up. The Insolvency Act was designed around such bodies. But the power in paragraph (d) applies to,
“such other description of person”,
and hence is not limited to corporate or business bodies. As the power to amend in relation to relevant bodies is in principle quite wide, that raises wide issues.
I am asking the Minister where the boundaries are. Would it be possible that categories of individual, who are persons, could be brought in under paragraph (d) orders? Could the power be used to bring in charities that are not set up as companies or other kinds of unincorporated body? Are there any limits—rather as I was discussing on the previous amendment—to how this power could be used? As the Minister will see, we have concerns about this power being used to add relevant bodies under paragraph (d) with only the weakest of parliamentary procedures to oversee the use of that power. Our amendments in this group therefore focus on making the power subject to the affirmative procedure rather than the negative one.
The Minister will be aware from my remarks that we are also concerned about the appropriateness of the power in paragraph (d). It is important that the Minister should comment on the extent of the power as well as on the parliamentary process. I beg to move.
I reassure the noble Baroness that we have tried to identify all the relevant bodies in the list, including the limited liability partnerships. However, as she has had the delight of engaging in a number of debates since she entered this Chamber, she will be aware that we have, together, formed new bodies, identities and forms which have come into being in other legislation. She identified a number of them which she hoped would be covered. I assure her that they are.
It is clear that bodies may be created in the future that will need to be covered by paragraph (d). That provision would allow those bodies to be properly included without having to follow the affirmative resolution procedure. As the noble Baroness said, we discussed the purposes behind Clauses 27 and 28, and why they are necessary.
Amendments Nos. 84 and 86 would change the procedure for the order-making power to add to the list of relevant bodies from negative resolution to affirmative resolution. We agree with the Delegated Powers and Regulatory Reform Committee, which stated in its report on the Bill:
“Although this power affects the scope of clause 27, it is limited in its area of application and we do not consider the negative procedure to be inappropriate”.
For the same reasons, we say to the noble Baroness that this is a limited area of application. Therefore, it would be onerous to use the affirmative procedure in order to bring it into being. Amendments Nos. 131 and 132 are consequential on these amendments.
We looked at this matter but came to the view that the negative resolution procedure was the most appropriate level of parliamentary scrutiny. On that basis I resist the noble Baroness’s amendments.
I thank the Minister for that reply. She stressed that the reason for using the negative procedure was that the power was limited in its application. I was trying to probe the nature of these limitations. That is why I asked various questions about what sorts of person the power might apply to. I did not detect any limitations in the Minister’s response, so I am left with the impression that this is a very wide power which perhaps ought to be subject to the affirmative process. I do not know how the Delegated Powers and Regulatory Reform Committee reached the conclusion that the power was limited; I cannot see how it is limited. Perhaps the Minister can help me on that.
I refer to our earlier debate. The body would need to be a body that it would be appropriate to wind up, but otherwise it is a wide power to allow us to add bodies as necessary. As we have just discussed, those bodies have in the main been created by law. They are therefore able to be adequately identified. If and when those new bodies are created, they can be added.
The noble Baroness will know that “person” can be a legal person as well as a natural person. Therefore, when one is seeking an inclusive term which can include all sorts of legal personalities, it is not unusual to use “person”, which would include bodies corporate and other bodies which have been properly identified.
The noble Baroness asked about charities; the issue depends very much on the nature of the charities. As she knows, some charities can be companies. We see this not as a wide power, but as an opportunity to include bodies and personalities, including corporate personalities, as they are created to make sure that they are consistent, as one would expect. We do not think that this power could be used inappropriately. That is why, because of the constraints that are put in—I am not supposed to use Latin any more, so I had better not finish that thought.
We are looking to keep the group of entities similar, and they are identified in the way in which I have indicated. The negative resolution procedure is appropriate. That is why we were able to satisfy the Delegated Powers and Regulatory Reform Committee that it was an appropriate procedure to adopt. I am very happy to write to the noble Baroness further if she thinks that might help her.
I am grateful to the Minister for that. We do not want to delay things this evening. I am trying to ensure that the power is related to company-like bodies, which is too imprecise a term for an amendment, but she will understand that I am trying to see where the boundaries are. Perhaps it would help if she could write to me. In the mean time, I will think further about what she has said this evening. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 27 shall stand part of the Bill?
I decided to use a stand part debate to explore some of the Government’s thinking on Clause 27. I have not tabled anything about opposing the Question whether Clause 28 should stand part, but I am sure that the Minister will appreciate that my comments apply with equal force to the Northern Irish equivalent. As we have discussed, Section 124A of the Insolvency Act already allows the Secretary of State to present a petition allowing for the winding up of a company in a number of circumstances, including investigation under the Companies Act 1985 or the Financial Services and Markets Act 2000, or following information obtained under Section 2 of the Criminal Justice Act 1987. The basis for winding up under Section 124A is that it is,
“expedient in the public interest”,
that the company be wound up and that the court has to consider that it is just and equitable.
The Minister read out the equivalent parts of Clause 27 earlier. The one difference is the word “expedient”, which is in Section 124A of the 1986 Act. Will the Minister say why that word, which presumably had some significance when it was drafted for the purpose of the 1986 Act, has been omitted from the equivalent provision in Clause 27?
The one significant difference between Section 124A and Clause 27 is that Clause 27 has a very specific requirement that the body has to have been convicted of an offence under Clause 25 on failing to comply with a serious crime prevention order. Section 124A is much more broadly based, because it does not require any kind of conviction. It does not even require insolvency. The Section 124A provisions have been used significantly. I understand that between 30 and 70 petitions are presented each year, and I have not been made aware of any problems in using that power. I invite the Minister first to say in what respects the existing power under Section 124A was felt to be insufficient for the purposes of catching companies that have been convicted of an offence under Clause 25. Is Section 124A not wide enough to allow petitions in those circumstances?
I am aware that Clause 27 allows various persons other than the Secretary of State to present a petition, but that is not the focus of my inquiry. I am seeking an explanation about the powers to obtain a winding-up order under Clause 27 in comparison with those under Section 124A, rather than about the persons who may use the power. My first concern is why we have Clause 27 instead of Section 124A. Let us assume that the Minister will convince me, as I am sure she will, that Clause 27 is necessary. Will she explain why the Government have chosen to include substantive provisions relating to the winding up of companies in the body of criminal law rather than that of insolvency law?
Concern has been expressed by R3, the association that I referred to earlier, about the fragmentation of insolvency law between different statutes. It believes that fragmentation carries a risk of anomalies and inconsistencies for the treatment of different companies in substantially similar circumstances.
Which Minister or Secretary of State will be responsible for bringing forward secondary legislation under Clause 27? Will it be the Secretary of State for Trade and Industry, who has primary responsibility for insolvency law, or the Home Secretary? Does the Insolvency Service, which acts as a repository of technical expertise in the highly complex law relating to company insolvencies and winding up, agree with the drafting of Clause 27?
I suggest that a more satisfactory way of achieving the policy objective behind Clause 27, which we do not have a problem with, would be to amend Clause 124A of the Insolvency Act 1986 so that all relevant insolvency provisions were kept together as an integrated and coherent whole. That is the preference of R3, as I mentioned earlier. The fear is that the Bill creates a tiny island of insolvency law and a great ocean of criminal law, which could in due course have unintended consequences for the coherence of insolvency law overall. I look forward to the Minister’s response.
I know that I am raising matters that have been covered previously, but I have been trying to remember whether any description of a “person”—because, as the Minister said, “person” is a wide expression that is often used in the taxes Acts—that is now in existence is not covered by the Bill, as it is drafted. As the Minister rightly said, it could be a charitable trust or a charitable company, and if one wants to wind that company up or proceed against trustees, provisions already exist for that. Limited liability partnerships, on which I had the questionable privilege of speaking in the other place, are covered. I suspect that the only “person” that will be subject to subsection (11)(d) will be something like a limited liability partnership to be created in the future. Can the Minister think of anything at all that exists now that is not covered by the provisions already in the Bill? I understand the reasons for subsection (11)(d), but I cannot remember whether anything exists that is not covered by the Bill as it stands.
First, on the question raised by the noble Lord, Lord Burnett, I do not think that anything is not covered by the Bill at the moment; but, as I said to the noble Baroness, Lady Noakes, as things have evolved, we have created new bodies that should properly be included in any such list. The list is up-to-date as of today, but whether we will have created anything else by a year or two hence, I could not possibly comment.
On at least two occasions the noble Baroness suggested putting these orders into the criminal law. The whole purpose of the Government making these orders is, actually, to make civil orders. The prevention orders will not be made in relation to crime; they are protective orders. That is why we have borrowed from the Insolvency Act. One of the things that we are trying to do in relation to the authorities that are charged with interdiction of high-volume, serious crime is to be able to take action in a comprehensive and inclusive way in relation to these criminals. I know that the noble Baroness is familiar with the threat that they pose to legitimate business, particularly because they have previously created companies for the sole purpose of having a sham through which their nefarious practices can be covered.
The noble Baroness is correct with regard to the way in which we have used the current provisions of insolvency to deal with those circumstances. It is not because the circumstances have not been found to be well proven; it is because they are well proven that, when looking at these provisions in terms of what the High Court can do in considering an application, we see this as being one thing that the court may be minded to do and will be entitled to do within these proceedings.
The clause provides the applicant authorities with the power to petition the court for the winding up of a company, partnership or relevant body. This is so that, where such a body is being used for serious criminal purposes, it is possible to stop such activity through the authority where appropriate. At the time of making an application to the High Court, such an authority might make a number of orders in relation to stopping the activity. It might be winding up the company, making an application to restrict the movement of the individual or seeking to make appropriate further or other conditions on their ability to act. Clause 27(2) to (4) provide for the winding up of a company for that purpose.
Subsection (5) allows the Secretary of State to make an order to allow the court to wind up a partnership. Subsection (6) allows the Secretary of State to make an order to allow the court to wind up a relevant body. The court will not be able to wind up a partnership or a relevant body unless the secondary legislation under those subsections has been made.
The noble Baroness was right to highlight the provisions of Section 124A of the Insolvency Act 1986, because that is an example of winding up a company where it is in the public interest to do so. We have tapped into that legislation and used that framework so that the court can make an order within it. It is not the case that Section 124A is insufficient—that is not the point; rather, we simply wanted to provide for the court to be able to tap into that legislation when dealing with serious organised crimes and applications in this way. We wanted to provide for an applicant authority under the Bill to petition the court for winding up rather than having to go back through the route provided for an application in the Insolvency Act; otherwise, a number of applications would be going through the court at different times. This is a way of consolidating matters and enabling one application to be made in relation to one body.
We have acted in that way in order to prevent fragmentation, and we have avoided creating any new procedures. If the noble Baroness goes through all the safeguards that we have in relation to Her Majesty’s Customs and Excise and so on, she will see the way in which we have transported provisions from past legislation into these provisions. We have sought to remove any duplication so that there is consistency, a framework and a synergy, and we are not doing anything outwith what was argued about and debated when those other provisions were passed. We are not adding anything.
I have looked at whether we can find a reason why the word “expedient” has been left out on this occasion. It simply seems to me that the issues have been differently framed. It does not seem to have great significance other than being a drafting difference. The key is that the court must consider that winding up would be, first, just and, secondly, equitable, and those two safeguards will ensure that winding up occurs only when appropriate. I shall look at that issue and try to get a better explanation for why it is not there. I certainly did not have specific briefing on it and it does not seem to have a real significance. I shall need to have an explanation for the Committee as to why it is not there.
The noble Baroness asked me which Secretary of State will be responsible. As insolvency is an issue for the Secretary of State for Trade and Industry, it will be for that Secretary of State to make the orders, so nothing will change. We are considering the possibility of the Treasury making orders in relation to mutuals, such as building societies, for which it is responsible. That will enable us to be consistent with the framework that we currently have. We are not seeking to make any material change in that structure.
I hope I have been able to say enough to assure the noble Baroness that the framework, which is clearly dear to her and which works well, will not be interfered with. It will stay as it is and will simply allow applicants, when they look at what they need to prevent criminals from taking advantage of the proceeds of their crime and to stop them from furthering crime, to make all the relevant orders at the same time as may seem to the court to be convenient. That is another reason why we thought that these orders should properly be made in the High Court as, in any event, the High Court is the court that will normally be seized with all these applications and will have the expertise and knowledge to deal with them.
I am grateful for that reply. When I said that it is within criminal law, I meant that it is within a Serious Crime Bill that comes from the Home Office. I appreciated that the particular focus of the actions in the Bill is the civil procedure. I think she will understand the point I was trying to make: that this was being contextualised within law relating to criminal activity, as opposed to the activity of the administration of companies. My main concern was that we had a procedure in Section 124A, so why did we need another one? With that, was there not the possibility that we would develop a way in which companies might be wound up on parallel tracks? I think the Minister was reassuring me that it gave a different application process, but that it would be considered in the same way; the law would be developed in order-making terms in the same way within government. On that basis, that seems satisfactory, although I shall read carefully what the Minister has said.
I am also grateful to her for agreeing to look at expediency. I cannot pretend I know what expediency adds, but it struck me as odd, when comparing the two formulations, that that had been dropped. I was trying to find out why Clause 27 was drafted as it is. I am grateful for the Minister's response and I shall await her further communication. In the mean time, I withdraw my opposition to the clause.
Clause 27 agreed to.
Clause 28 [Powers to wind up companies etc: Northern Ireland]:
[Amendments Nos. 85 and 86 not moved.]
Clause 28 agreed to.
Clauses 29 to 32 agreed to.
Clause 33 [Proceedings in the High Court]:
[Amendment No. 87 not moved.]
Clause 33 agreed to.
Clause 34 [Proceedings in the Crown Court]:
[Amendment No. 88 not moved.]
Clause 34 agreed to.
Clause 35 agreed to.
Schedule 2 [Functions of applicant authorities under Part 1]:
89: Schedule 2, page 52, line 28, leave out paragraph 2
The noble Baroness said: I shall also speak to Amendments Nos. 90 to 92 as we reach the end of Part 1. The amendments make the applicant authorities take more effective control over decisions to go to court to obtain serious crime prevention orders.
The Explanatory Notes state that there will be tight control over the process of applying for an order to be made. We question whether the procedure set out in Schedule 2 is sufficiently rigorous. We are using these amendments to ask the Minister to put on the record the process by which SOCA will propose that an application be made, which then goes through a period of scrutiny followed by application to a court.
The schedule clarifies which authorities may make an application for an order: the Director of Public Prosecutions, the Director of Revenue and Customs Prosecutions, the director of the Serious Fraud Office and the Director of Public Prosecutions for Northern Ireland. Paragraph 109 of the Explanatory Notes states that:
“A Director must expressly delegate his functions rather than it occurring automatically. This will ensure that the exercise of the powers is kept under tight control by the Directors”.
But the drafting apparently does not give quite the crystal clear explanation that paragraph 109 seems to offer as an assurance. Schedule 2(2)(1) says:
“The Director may, to such extent as he may decide, delegate the exercise of his functions under this Part to a Crown Prosecutor”.
In theory, that could mean that the DPP could simply give a general ruling on day one of the implementation of this Bill that, henceforth, all Crown prosecutors may make the decision to apply for an order. That would mean that no special overview was required or guaranteed by the DPP. I hope that the Minister does not foresee that situation, but we need clarity on this.
I appreciate that a back-up provision intended to give some reassurance is found in paragraph 3, whereby the Attorney-General will superintend the functions exercised by all the directors. Is it intended that the Attorney-General will review each and every application personally, or will he delegate his powers? If he delegates his powers, will his office automatically scrutinise each and every application coming forward from the various directors?
The Government’s public estimate so far has been that approximately 30 orders a year are likely to be made; that has been culled from various press releases. Is that still their view, and on what have they based that assumption? I beg to move.
I shall deal with the noble Baroness’s last question first. The figure that she gave is our current estimate. We have had to ask for advice from the relevant authorities on their reasonable expectation as a result of going through cases and histories to see what is likely. That is their best estimate. The noble Baroness will see from that figure that these orders will not be lightly sought, because they are likely to be limited in number and directed to those cases where the seriousness of the activity is such that the authorities believe it necessary to take this action.
It is unusual for such a direct delegation of powers to be made to the Director of Public Prosecutions, the Director of Public Prosecutions for Northern Ireland, the Director of Revenue and Customs Prosecutions or the director of the Serious Fraud Office. It is expressed in this way on this occasion because how decisions are made must be more tightly controlled than it would otherwise have been, because these are very serious orders. So the need to express delegation is a departure from the norm. Normally—for example, under the Prosecution of Offences Act 1985—delegation happens automatically by operation of the legislation. We have departed from that and provided express delegation because we believe that these orders fall into a slightly different category. They will need to be carefully targeted and scrutinised to make sure that the evidence and information on which they are based is sound and in good order to go before the court.
The Attorney-General will provide his usual oversight of the director’s functions. He will not look at every case. He is usually invited to look at particular cases that are causing difficulty or on which his support and advice are needed. That procedure will continue to operate. It will not be just the Serious Organised Crime Agency that will apply for these orders. Law enforcement agencies will bring cases to one of the applicant authorities and will work with specifically trained members of the applicant authority—not all members of those bodies will be so trained—who have had powers delegated to them by the director of the body. If those specifically trained members of the applicant authority consider it appropriate, they will apply to the court for an order to be made. It is because these orders are specialist that we think it appropriate to create this procedure.
It is important to recognise that we cannot expect each director to make every operational decision in relation to every order sought by his organisation. That would be impractical. However, these orders will be applied by highly trained and highly qualified members of the three organisations. We believe that that will be a wholly acceptable way to work. The most important thing is that any application should be properly made so that it can succeed. We have created a high benchmark in the tests that have to be satisfied. It would be a great disappointment if the skill and attention needed to make sure these orders go well were not applied, hence this procedure. I hope the noble Baroness will feel content, particularly as it is now 10.02 pm.
If ever there were a hint that I should be brief! I can sometimes take a hint, and this is one of those occasions. The Minister argued that the Government have departed from the norm by providing for express delegation and that there is tighter control than usual. I am glad that there is a departure from the norm because serious crime prevention orders themselves are a departure from the norm. I shall look carefully at Hansard to see if what the Minister said satisfies me before we perhaps return to this matter on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 90 to 92 not moved.]
Schedule 2 agreed to.
Clauses 36 to 38 agreed to.