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That aside, my starting premise would certainly be that Lord Lloyd’s amendment to the Bill is not the right way to take the issue forward. A Public Bill Committee would not be the place—almost on the hoof—to determine, get in place and correct the deficiencies in the Lloyd amendment. Therefore, we are very clear that we want to take the matter further in the terms that I have suggested. As my right hon. Friend the Home Secretary outlined last week in respect of other provisions for a potential terrorism Bill, which will not be introduced until at least the autumn, it is appropriate to secure a cross-party basis for taking this forward. We thus have the time and scope for such a review, alongside all the other elements that go to the terrorism part—rather than serious and organised
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crime part—of the Government’s agenda. I hope that that, and not this Bill, will be viewed as the most appropriate context for dealing with something as important as intercepted evidence.

Rob Marris: I welcome the review on intercept evidence and I quite understand my hon. Friend’s reservations about the way in which the Lloyd amendment has been put forward. If possible, we should look very seriously into allowing intercept evidence, but with the appropriate safeguards to which my hon. Friend referred. May I draw him to another point before he closes his remarks about this Serious Crime Bill? What thought have the Government given to the Bill allowing post-charge questioning—I believe that it should—in relation to serious crimes?

Mr. McNulty: That is an entirely fair point. My hon. Friend will know that we are going down that route in the proposed terrorism Bill in the autumn. Rather than introducing such a measure for serious and organised crime in a knee-jerk fashion, it would be better to explore the possibility in the future. For completeness, in public policy terms I would rather see how effective such a measure was in terrorism cases and, as it were, work backwards to determine whether it might be appropriate for serious and organised crime. It is certainly a matter worthy of subsequent exploration.

I am sorry that my speech has been inordinately long, but I hope that the House will acknowledge that I have taken a great many interventions—I almost said “interceptions”—as is right and proper at the opening of a Second Reading debate. I am sure that whoever works on the Bill—who knows what is going to happen in the next couple of weeks?—will enjoy themselves enormously. It will have profound implications for taking forward our fight against serious crime. Other than for the amendments on searching for guns and on intercept evidence, both of which we shall seek to overturn, I commend the Bill to the House.

4.36 pm

Nick Herbert (Arundel and South Downs) (Con): The whole House will acknowledge the need to deal with serious crime, the economic and social costs of which are estimated to be between £20 billion and £40 billion a year. The assets derived from crime represent about 2 per cent. of the UK’s gross domestic product. Let us not forget the human suffering caused by the violence and fear that organised crime breeds. These are not victimless crimes; the fact that the misuse of class A drugs is estimated to cost £13 billion a year is evidence of that.

The question is whether the Bill will be effective in dealing with these problems. We must ask why there is another Home Office Bill and how thought through it is. It is only two years since the passing of the Serious Organised Crime and Police Act 2005. It has been pointed out that the Government are focusing on legislative solutions. The Home Office has introduced 62 pieces of legislation since 1997, including six Bills in the most recent Queen’s Speech, not all of which we have seen. Twenty-three of those pieces of legislation have subsequently been repealed, either wholly or in part. In the same period, more than 3,000 new offences have been created, 430 of them by the Home Office. The creation of 3,000
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new offences works out at a new offence for almost every day that Labour has been in power, and it is twice the rate seen under the two previous Conservative Administrations. The Government have not yet worked out that the effectiveness of the law enforcement agencies and police forces is at least as important as the legislation that they seek to pass, often in haste. When legislation is necessary, however, it is important that it should be proportionate and effective. That is the yardstick against which we will judge the Bill.

Part 1 of the Bill immediately gives us a problem in that regard. The Government tell us that the proposed serious crime prevention orders are aimed at the Mr. Bigs—the 400 major crime bosses in the UK who have amassed a criminal wealth of approximately £440 million. The orders are a new type of civil order, similar to antisocial behaviour orders. Indeed, they have been nicknamed “gangster ASBOs” or “GASBOs”. They will be made by the High Court, which could impose a broad range of prohibitions, restrictions or requirements on an individual or business. They could last for up to five years, and could be renewed indefinitely. Breach of an order would be a criminal offence carrying a sentence of up to five years’ imprisonment. They appear to be a hybrid of control orders and ASBOs. As such, they are hardly likely to recommend themselves to Conservative Members.

We have two principal concerns about the proposals. First, how effective will they be? After all, we know that more than half of all ASBOs are breached. Some 35 per cent. are breached more than five times and 79 per cent. of those who receive them have previous convictions. The Youth Justice Board report described ASBOs as being worn by youths like a

bad behaviour.

Most seriously, MORI research shows a lack of public confidence in ASBOs. An Ipsos MORI poll published in June last year, six months after the launch of the respect action plan, found that nearly half the public do not think that ASBOs are effective in stopping antisocial behaviour. Nearly a third of people subject to control orders have absconded. Since the beginning of 2006, 19 people have been subject to control orders, six of whom have absconded and all of whom remain at large. Given the record of ASBOs and control orders, we view the prospect of a new fusion of the two with a certain amount of concern about their effectiveness.

Our second concern is about the underlying principles governing the orders. They are predicated on the notion that at some future point in time, a person will commit an unspecified criminal offence and needs to be prevented from doing so. Hon. Members might have seen the film “Minority Report”, in which the system of punishing someone with imprisonment after a crime has been committed has been replaced with pre-crime, which operates before a crime takes place in an attempt to prevent it from happening. It is no longer fanciful to say that that concept of pre-crime is being introduced into our legal system today. The only difference is that Tom Cruise relied on mutants who foresaw the future, whereas the Minister and his proposals will rely on hearsay evidence to back up the new gangster ASBOs.

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Rob Marris: I think that I am following the hon. Gentleman’s argument carefully and that I understand it, but he said that there will be reliance on hearsay evidence. Will he point me to where in the Bill it says that hearsay evidence—or GASBOs, or whatever they are called—will be relied on?

Nick Herbert: The hon. Gentleman does not seem to understand that it is a civil process and that is exactly the kind of evidence that could be relied on in the operation of such orders.

Mr. Garnier: The hon. Member for Wolverhampton, South-West (Rob Marris) might also care to note that provision is made in the Criminal Justice Act 2003 to allow the admission of hearsay evidence even within criminal proceedings. It is not a new breach of the original system of admitting evidence into quasi-criminal-type proceedings. He needs to read one of the 64 Bills that have been passed before this one.

Nick Herbert: I am grateful to my hon. and learned Friend for his assistance.

The concerns about the measures, which blur the boundary between the civil and the criminal law, enabling criminal sanctions to follow from doing something that is not in itself a crime, have not just been expressed by the civil liberties organisation Liberty, the advice of which the Minister sought to discredit. They have also been expressed by the Law Society, which said:

The Minister made great play of the fact that the measures are not punitive, but as the House will know, it has become common for ASBOs to be used as an easier alternative to criminal prosecution, because it is more straightforward to collect and rely on hearsay evidence than to assemble the necessary evidence to secure a criminal conviction.

Mr. Geoffrey Cox (Torridge and West Devon) (Con): Can my hon. Friend think of a reason why the Serious Organised Crime Agency might wish to prosecute? Under the Bill, criminals’ assets can be seized, they can be labelled with the stigma of guilt of serious crime on the balance of probabilities, and they can be subject to the most onerous restrictions on their liberty. Why would anyone want to go to the trouble of lengthy criminal proceedings if all that could be done on the balance of evidence in an ex parte hearing on affidavit?

Nick Herbert: My hon. and learned Friend makes a good point. Just as the Government make great play of their desire to take cases out of the courts in developing their summary justice programme, of which they regard ASBOs as being a part, there is no doubt that in this instance they seek an alternative means of dealing with serious criminals. That may mean that the proper avenues of court procedures will not be followed, and that no safeguards or checks will enable the House to monitor or assess on an ongoing basis the extent to which these provisions are being used for their proper purposes.

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Despite Government concessions in the House of Lords, the raft of restrictions that GASBOs could impose is extensive. They include restrictions on those with whom a person can communicate and on where a person can live, work or travel. They may also include requirements to answer questions, provide information or produce documents. The Government say that the High Court will provide oversight, but as Mr. Justice Sullivan said in the context of control orders, to which these measures bear some relation, judicial involvement in the making of such orders can be no more than a “thin veneer of legality” which “cannot disguise the reality”. As was pointed out earlier, the definition of serious crime includes

We thought that the Bill was designed to deal with the untouchables, the modern-day Al Capones; now it seems that it could be used to target Pop Larkin.

The Secretary of State can also modify the list by order, which the Conservatives consider unacceptable. If there is to be an extension of the crimes to which these measures can apply, given the supposed serious nature of those crimes, it should be made by primary legislation. We will pursue that point if the Bill reaches Committee.

As a former deputy chief constable, John Stalker, said,

but, he said, they were not appropriate for more serious criminals.

These are the key questions. Where are the safeguards to ensure regular review of the orders? They do not exist in the Bill. On what basis will the effectiveness or reasonableness of the orders be judged? In Committee, we will consider measures to ensure that such safeguards are placed in the Bill.

In its report on the Bill, the Joint Committee on Human Rights commented:

That leads me to clause 4 and to schedule 13, which was inserted in another place against the Government’s wishes. Both provisions relate to the use of intercept evidence. There are already a range of practical measures that would strengthen our ability to bring terrorists to justice, and we believe that the introduction of intercept evidence in court is the single most effective step that the Government could take today to make the country safer.

The Home Secretary says that intercept evidence is not a silver bullet. Of course; there are no silver bullets when it comes to dealing with terrorism. But why is the UK one of only two countries in the democratic world
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that does not use intercept evidence? Many arguments have been put against the use of such evidence. They include the argument that terrorists will cotton on to what is happening and that the means of the intercept will be revealed. But as Andy Hayman, the assistant commissioner of the Metropolitan police in charge of counter-terrorism, told the Home Affairs Committee:

Mr. McNulty: He is showing his ignorance.

Nick Herbert: From a sedentary position, the Minister says that the assistant commissioner of the Metropolitan police, who is in charge of counter- terrorism, is showing his ignorance by making those comments.

Mr. McNulty: With the greatest respect, I am saying that the hon. Gentleman is showing his ignorance by saying that such an argument about interception techniques and how criminals and terrorists attempt to resist them is now lightweight. That simply shows that he does not understand the range of intercept techniques that now exist, any number of which, to be fair—I am more than willing for the hon. Gentleman to have the appropriate briefings—are not common knowledge to the terrorists and serious criminals but would be were we to go down this road, without being covered in the ways that I have suggested.

Nick Herbert: Quite clearly, the Minister was seeking to dismiss the comments of the assistant commissioner, who told the Home Affairs Committee that he had changed his view and concluded that the time had come to review the use of intercept evidence.

The assistant commissioner also helped to knock down a number of the other arguments against the use of intercept evidence. Another common one is that it would impose an undue burden on the police and intelligence agencies. The assistant commissioner said that this was

The fact is that the arguments for using intercept evidence are increasingly accepted by a large range of people, including the Attorney-General, the Director of Public Prosecutions and even the Government’s terrorism adviser, Lord Carlile, who has accepted that the issue needs to be reviewed.

Robert Neill: To reinforce my hon. Friend’s argument and to close down, I hope, the suggestion that the assistant commissioner’s remarks were somehow off the cuff, Assistant Commissioner Hayman’s remarks were specifically endorsed by the Metropolitan Police Commissioner, Sir Ian Blair, who reported recently to the Metropolitan Police Authority in exactly the same terms. I am sure that my hon. Friend is also aware that there is an increasing feeling among the police and other agencies that a sensible approach to the public interest immunity regime would be an adequate means of dealing with the safeguards. I appreciate that my hon. Friend may want to look at this issue in
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Committee, but does he agree that, increasingly, the leaders in British policing recognise that this is an appropriate way forward?

Nick Herbert: I am grateful to my hon. Friend. Andy Hayman concluded by saying that the fact that we did not allow the use of intercept evidence made us

His views on the matter were quite clear.

As I mentioned, almost every other major country uses intercept evidence to some effect. In the United States, it is used in nearly all counter-terrorism and organised crime prosecutions and is often the decisive evidence in relation to prosecutions.

The Government have not had a coherent view on this issue. In his statement on control orders last month, the Home Secretary said that the Government had been looking at allowing the use of intercept evidence in court for a considerable time but that

The Chancellor, however, has recently briefed journalists that he favours the use of intercept evidence. Judging by the Minister’s comments—and his remarks from a sedentary position—I wonder how open minded the review that the Prime Minister has conceded following the request of my right hon. Friend the Member for Witney (Mr. Cameron) will be about the use of such evidence. Therefore, we must examine the premise of the review.

We are grateful that the Government have now accepted the proposal on Privy Council terms. The committee of Privy Councillors that looks at this issue should be a cross-party committee and it should be balanced—there should be no overall control by one party. No one serving in Government should be on the committee; its members should be Privy Councillors with expertise in the issue. The committee must report well before November, in advance of First Reading of the new counter-terrorism Bill, to allow time for provisions to be incorporated in it, if necessary. Crucially, there must be a presumption that the Government will accept the recommendations the committee makes once it has examined all the evidence and arguments and taken account of any concerns that those in the intelligence services might continue to have. If the committee finds that the use of intercept evidence is necessary, the Government should accept that. We want to be sure that the Prime Minister, having accepted the proposal, will set up a committee that looks objectively at the evidence. That is why I view the Minister’s remarks and the Home Secretary’s previous remarks on this issue with some concern.

In view of that, we should not give up the provisions on the use of intercept evidence that Lord Lloyd added in Committee. We need at the very least to have reassurances on how the Privy Council examination of the use of intercept evidence will be conducted and on its terms of reference before we can allow the view of the other place to be overturned.

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