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step up to leadership in the organised crime group.
On that basis, although they are peripheral an order will be made against them. In my respectful and urgent submission, the House needs to reflect very carefully about whether, if they truly are peripheral players, so heavy and blunt an instrument should be placed in the hands of the Executive on so slender a basis.
What did the consultation paper say about the Mr. Bigs? It was suggested that they might be subjected to these orders where there is sufficient evidence to
justify an order to a civil standard, but insufficient for a conviction. That goes directly against what the Minister for Security, Counter Terrorism and Police told us in opening the debate todaythat in essence the burden or standard of proof would be the criminal standard of beyond reasonable doubt. If that is right, what is the need for the provision? If it has to be established beyond reasonable doubt, that is essentially recreating a criminal trial in a civil court. Of course, the consultation paper did not say that and nobody really believesnot even, I suspect, the Ministerthat the criminal standard of proof can conceivably apply in those circumstances. It will be a civil standard of proof and merely a question of probabilities, not of reasonable certainties. What does the consultation paper say about that? It explains why a Mr. Big, instead of being prosecuted, properly convicted and sentenced by a judge, should simply be subject to this summary-type of procedure based on written evidence and no trial. It says that it can be justified because of the quantity of the evidence or because some of it is in a form not admissible in criminal proceedings, but that can be used in civil casesnamely, hearsay.
It was argued earlier that, since the Criminal Justice Act 2003, the admissibility of hearsay in a criminal trial has now become so relaxed that there is in fact not a very significant difference between genuinely probative hearsay and its admissibility in a criminal trial, and genuinely probative hearsay and its admissibility in a civil trial. Be that as it may, what the consultation paper is essentially saying is, We dont have the evidence against this person. We cant prove that they are involved in serious crime. We havent got the necessary foundation to deprive this man of his liberty, to strip him of his assets, to take away his good name and to impose restrictions on him that would have a substantial effect on his family. The orders in the Bill would have just such effects.
Let us make no bones about this: the House is being asked to accept that a truncated, abbreviated kangaroo procedure should be adopted to visit upon an individual the consequences of a conviction because the state does not have sufficient evidence to convict him. I ask Members on both sides of the House to reflect on whether we ought to admit that as a principle in this House. It is in this House that so much sweat, toil and effort has been put into the cause of freedom and liberty. Should we, on a quiet Tuesday afternoon, allow so fundamental a principle to pass without at least a voice of protest being raised or critical and constructive opposition being mounted? Our ancestors would have gone to the stake before permitting the Executive to restrict an individuals liberty in this draconian way.
Let us look at some of the other bases on which an order could be made. In another place, Baroness Scotland outlined the circumstances in which a manufacturer or business man was making items that could facilitate crime. She gave as an example the production of cargo storage containers with false bottoms, saying that such equipment would plainly be manufactured with little else in mind but a criminal purpose. The orders might therefore be used to prevent such items being manufactured. We might also think of those who manufacture speed camera detection equipment. Those are machines that people have in
their cars to tell them when they are approaching a speed camera. I do not have one; I do not know whether the Minister does.
It is lawful to produce that type of equipmentit is not a criminal offenceyet the manufacturer could be the subject of one of these orders. I ask the House to reflect on that. Producing such items is a perfectly lawful, admissible activity, but the House is being asked to make it unlawful through legislation, rather than a proper criminal offence being brought on the basis of aiding and abettingor, under this Bill, assisting and encouraging. Such people would be eminently chargeable under the new provisions with assisting and encouraging an offence, and one of those orders would be made. That would criminalise lawful conduct without reference to the House. It would visit upon the individual the consequences of a conviction and of engaging in unlawful activity without having made the activity unlawful.
The Ministers opening speech was conspicuous for its paucity of justification for the orders, other than bland platitudes about the gravity of organised crime, with which I completely agree. Every time we look at the specific justifications for the use of these orders as set out in the consultation paper, they melt under scrutiny. The consultation paper also invites us to accept, as a basis for passing the Bill, that orders could be an
additional option in the run up to a criminal prosecution.
Let us analyse that one, if we may. Let us imagine that the Serious Fraud Office, the Director of Public Prosecutions or the Serious Organised Crime Agency had a potential criminal under investigation. It would investigate him in the normal ways open to it, no doubt including surveillance, covert interception and all the other paraphernalia available to the law enforcement authorities. Under the proposals, the Director of Public Prosecutions, for example, could pop along to a High Court judge and say, Now look, were investigating this chap. The judge would say, Well, havent you got to serve a notice on the person youre investigating? The director would have to say, Yes, the Act requires it. He would be faced with the bizarre situation of having to tell the serious criminal that he was investigating him, because he would have to seek an order in the High Court and serve notice on the criminal to prevent him from engaging in any further activity.
I ask the House to reflect on whether those two things are compatible. If we are seeking a civil order restricting a persons liberty and stripping him of his rights as a free individual, we are inherently telling him that we are investigating him and that he is a target of a law enforcement agency. There would then be no point in getting one of these civil orders, unless the evidence was already in the bagin which case, why not just prosecute him?
additional option in the run up to a criminal prosecution, imposed to restrict the harm the subject can do while the case is being prepared.
It is a long time since I was in a magistrates court, but I recollect that magistrates have pretty wide powers on bail. If there were a real fear of the subject reoffending, the magistrate would be under a duty to put him in the nick. It is one of the bases of the Bail Act 1976 that if there is a real perceived risk of someone reoffending, or of continuing to offend, he should be imprisoned. He should not be on the outside with an expensive civil order being sought from a High Court judge. I do not understand that, and I ask the Minister to clear up my confusion. If an order is to be imposed to
restrict the harm the subject can do while the case is being prepared, in cases where the subject is aware of law enforcement interest already,
I find it almost impossible to understand where this power will fit in. If it is not obvious straight away that it is vital to the fight against crime, I ask the House to reflect on whether we should be giving it to the Executive at all. If it is so hard to discern the basis on which the orders will be made, and exactly where the provisions will fit into the criminal justice system, why are we taking a step that is fraught with such grave consequences to the principles of liberty for which the House has always stood? Is it surprising that people in the judiciary and the wider society are saying that they can no longer trust the House of Commons to stand up for their liberties, and that that must be done by the judiciary? That argument is always used to justify the power of judges to take away from the House its role as the vigilant defender of human rights and liberties. I respectfully submit that we must exercise the greatest of care over such an important issue of trust.
It is not only the Bill itself that gives me concern, but the place that it occupies in a growing trend that the Government have evinced for a number of years. Others have spoken about the avalanche of legislation that has overwhelmed our criminal justice system. That is a true observation. Speaking for myself, I have never seen such a tide of legislation exposed to such withering criticism in the courts, and some of it has not even been brought into force, as my hon. Friend the Member for Arundel and South Downs (Nick Herbert) mentioned. We had 340 sections and 37 schedules to the Criminal Justice Act 2003, and 179 sections and 17 schedules to the Serious Organised Crime and Police Act 2005. Now, we have the Serious Crime Bill, with 85 clauses and 15 schedules. Some countries whole criminal codes have fewer provisions than that.
Mr. Garnier: I hesitate to interrupt my hon. and learned Friend because he is making a powerful speech, but the 2003 Act underscores his very point. Four of its sections and two of its schedules have been repealed in whole or in part, and approximately 50 sections and 17 schedules are not yet in force. That was the flagship Act that this benighted Government forced on us and it is exposed by his argument as being wholly deficient.
My hon. and learned Friend is right. I was about to cite one example. Barely two years after the
money laundering offences were enacted in the 2003 Act, they were rewritten in the 2005 Act. What on earth happened between the time when the 2003 provisions became effective and the 2005 Act was drafted to make it necessary to rewrite all the money laundering provisions in that earlier Act? As my hon. and learned Friend said, perhaps the truth is that legislation is not receiving the quality of attention that should. If these fundamental principles are not simply being tinkered with in a lightweight spirit, that does no credit to this Government or the systems of government in which we are engaged.
The Bill must be seen against the background of a Government who wish to introduce identity cards and ensure that the citizen must do the bidding of the state at appropriate times in his life so that his biological data can be recorded. Under those proposals, a citizen would be obliged to go to a particular place under the direction of the state to give up his personal details. Under the Bills provisions, the consequences of almost all convictions, and certainly all of them that matter, will be visited on that individual without due process and without trial.
In my respectful submission, there is no reason for us not to criticise, not constructively to inquire and not to probe the Minister for a better justification than he has given to date. I am certain that he and his colleagues are motivated by a desire to combat serious crime. We should make no bones about that and, frankly, I concede it. However, I ask the Minister to reflect on the idea that what is at stake is not trivial or light; it is a tradition and principle of liberty for which his political ancestors as well as mine have fought for hundreds of years and which was always considered to be, and I believe still is, one of the most valuable inheritances to which all of us, on both sides of the House, have the privilege of acceding. That is why I ask him to reflect very carefully, before the Bill is allowed to pass through the House, on the real justification for it, on the logical bases put forward in the consultation paper, and on whether or not it does not amount to a very significant invasion of our liberty and one that the House should not pass.
Mr. Edward Garnier (Harborough) (Con): I congratulate my hon. and learned Friend the Member for Torridge and West Devon (Mr. Cox) on the most devastating and destructive piece of argumentation in response to part 1. All that he said is something that the Government should have thought about beforehand. The quietly sceptical way in which my hon. Friend the Member for Arundel and South Downs (Nick Herbert) referred to part 1 was very much of a pieceif different in characterwith the way in which my hon. and learned Friend advanced his case.
Having listened to the nearly hour-long speech from the Minister for Security, Counter Terrorism and Police, who introduced the Bill, I do not think that even two sentences of what my hon. and learned Friend said had ever occurred to the Minister before he got to his feet. That is not surprising. I am not sure whether he is about to be reshuffled, but the hon. Member for Taunton (Mr. Browne) said that he was heading for ministerial oblivion. I do not know what the Ministers
future is over the next few days, but there were moments during the course of his speech when I thought that he was going to talk his way right through the reshuffle to prevent his being available to be spoken to on the telephone.
I can be briefer than I intended because of the speeches by my hon. and learned Friend and my hon. Friend. I want to place the Bill, and part 1 in particular, in the context of the avalanche or tidal wavecall it what you will, Mr. Deputy Speakerof criminal justice legislation since 1997. My hon. Friend identified the catalogue of criminal legislation that we have had and the huge number of additional offences that the Government have created in the past 10 years. However, it does no harmin fact, I think it does some goodto remind the House of something, because it is often forgotten. I can remind only part of the House, of course, because despite introducing the Serious Crime Bill, the Government have failed to persuade a single Labour Back Bencher to come and support the measure. I appreciate that not everyone who is elected as a Member of Parliament can be here all the time. I appreciate that not every Member of Parliament is in the least bit interested in legislation. I would have thought, however, that at least one Labour Back Bencher would have had the nous to read the Bill, to have some thoughts about it and to speak gleefully on behalf of the Government in its favour, or even just to read out a Whips brief
Mr. Garnier: Possibly that, too. Perhaps Labour Back Benchers have legislation fatigue. I mentioned in an intervention that 34 Home Office Bills had been repealed, repealed in part or not fully implemented. That is bad enough, but let us consider the sort of Bills they are. I am not going to recite all of the 34 out of the 64 Bills for which the Home Office has been responsible since 1997, but I will give just a few examples. The Crime and Disorder Act 1998 contains 43 sections and two schedules that have been repealed in whole or in part. The Criminal Justice and Court Services Act 2000 contains 15 sections and one schedule that have been repealed in whole or in part. Half a dozen of its sections and schedules are not yet in force, and it was passed seven years ago. The Criminal Justice and Police Act 2001 has 21 sections and two schedules that have been repealed in whole or in part, and an equivalent number of sections from the Police Reform Act 2002 have not been brought into effect or have been repealed in whole or in part. The Criminal Justice Act 2003, about which my hon. and learned Friend and I had a brief discussion, contains four sections and two schedules that have been repealed in whole or in part, and approximately 50 sections and 17 schedules that are not in force.
What is the point of the Governments coming to the House to tell us that legislation is essential to the public good, ramming it through and not allowing Public Bill Committees to discuss it? Bills are guillotined, the work has to be done in the other place, and in the end the legislation does not come into force.
I shall speak briefly about part 1, although the brevity of my remarks should not be interpreted as a sign of any lack of enthusiasm for my arguments. What
we are discussing is a form of civil injunction to prevent a crime. It seems that things have changed, but I was always taught that it was not possible to obtain an injunction from a High Court judge to prevent an anticipated crime, because the criminal law was sufficient injunction in itself. That was the deterrent: that was the way in which our behaviour was regulated in relation to criminal activity. It would not be possible to go to court and say to the judge, I want an injunction to prevent the defendant, or respondent, from committing an anticipated burglary, an anticipated murder, or some other anticipated crime. The judge would simply say The law is on the statute book. Common law already exists. That will do.
Equally, I was always led to believe that the criminal law was not part of contractual law. A person could not commit a crime on the understanding that he could do it as long as he paid the fine or did the time; the criminal law did not work in that way. Now, however, we are watching the Government quietlyI say quietly because no Labour Back Benchers are here to listen to this, or to listen to the Governments justification of their intentionmove huge chunks of criminal law and procedure into the civil jurisdiction.
As my hon. and learned Friend pointed out, the consequences of such action will not be slight. I fully understand the political reasons for it: it must be cheaper, I presume it must be quicker, and it must be assumed that it will have some deterrent effect. Nevertheless, as my hon. and learned Friend said, it will have deleterious and damaging consequences for our constitution and the balance between the state and the individual, and I find that somewhat worrying.
My hon. Friend the Member for Arundel and South Downs was entirely right to give the Bill only a conditional welcome. The fact that we will not divide the House this evening does not mean that aspects of the Billthis aspect in particular, I hopewill not receive the closest examination in Committee. I note that my hon. Friend the Member for Arundel and South Downs and my hon. Friend the Member for Hornchurch (James Brokenshire) are nodding in assent.
We must be extremely careful. As I have said, we are providing for a form of injunction against crime when the criminal law already exists. I do not suggest that that is a wholly novel conceptpeople are bound over in the courts not to commit offences, and we have observed the somewhat troubled system of control orders, so the wall has been breached to some extentbut this is a mighty step, and a huge leap over that wall.
Mr. Elfyn Llwyd (Meirionnydd Nant Conwy) (PC): The hon. and learned Gentleman rightly referred to the civil concept in the criminal courts. People in court undertook to keep the peace as long ago as the 13th century, but that was by consent. This provision is quite different: it is being thrust on people.
Mr. Garnier: for the purposes of my argument, I think I must accept that the principle against which I am arguing has been breached to some extent. The hon. Gentleman is right, however: the quality of the breach is entirely different in the case of bindovers.
An order under this section may contain
(a) such prohibitions, restrictions or requirements; and
(b) such other terms;
as the court considers appropriate for the purpose of protecting the public by preventing, restricting or disrupting involvement by the person concerned in serious crime in England and Wales or (as the case may be) Northern Ireland.
For the purposes of this Part, a person has been involved in serious crime in England and Wales if he
(a) has committed a serious offence in England and Wales;
(b) has facilitated the commission by another person of a serious offence in England and Wales; or
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