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(c) has conducted himself in a way that was likely to facilitate the commission by himself or another person of a serious offence in England and Wales (whether or not such an offence was committed).
The court need not have within its grasp evidence that a serious criminal offence has been committed; it need merely be persuaded that it is likely to be committed. A facilitator, however, is quite likely to be caught by the clause, even if he did not know about the offence and even if he did not intend to facilitate its commission.
“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...his intentions, or any other aspect of his mental state, at the time.”
I accept that there are absolute offences, but it seems to me that a serious criminal offence, or the facilitation of a serious criminal offence, ought at least to be in the mind of the respondent to the application. Otherwise he could well be penalised—subjected to a five-year term of imprisonment—despite his innocence. Five years is a long time for breaching an injunction. Even the Contempt of Court Act 1981 provides for a limit of two years for that form of breach, and I think that my hon. Friends will need to examine that provision very carefully in Committee.
We had a degree of fun over the definition of “serious crime”. I think that most people could understand the concept without its having to be defined in a schedule, but at least there is a definition in the Bill for the benefit of those who are likely to be caught, those who may wish to make applications, and Members of Parliament who may come upon Hansard by accident and read the speeches of those who spoke before me.
Part 1 of schedule 1 defines serious offences as drug trafficking, people trafficking, arms trafficking, prostitution and child sex, money laundering, fraud, corruption and bribery, counterfeiting, blackmail, and offences relating to intellectual property—the hon. Member for Taunton had some fun with those—and the environment. It seems to me at least possible that the Minister for Security, Counter Terrorism and Police, who introduced the Bill, has not read the underlying legislation to which the schedule refers. The clue is that the Minister tends to resort to abuse rather than argument when faced with a difficult question. I am not suggesting that we are discussing the possibility of people being caught by prevention orders for fishing with a spinner during the fly season, but I do think the Minister ought to come here with his work done before
trying to explain what the Bill is about. I doubt very much that he has any idea what it is about.
The Minister chided me, telling me that I ought to get out more. I would get out more if I were not having to keep the Government under a watchful eye, but there are some interesting gaps in the schedule. For instance, homicide, grievous bodily harm, offences of robbery and indeed terrorist offences are not included in part 1 of the schedule. Perhaps the Government let them slip. I worry that the Ministers in charge of this Bill have not been giving it their proper attention.
One other issue about which the House ought to be concerned is clause 5(4), which yet again provides an example of this Government requiring this Parliament to give this Government executive powers to amend the criminal law without resort to Parliament. Clause 5(4) says, in the most disarming way:
“The Secretary of State may by order amend Schedule 1.”
I really do not think it appropriate to allow any Home Secretary—certainly not the catalogue of Home Secretaries we have had to put up with since 1997—to get anywhere near amending any Act of Parliament by expanding, or even reducing, the list of criminal offences that are affected by the Bill without proper parliamentary scrutiny on the Floor of the House; not tucked away in some Committee Room upstairs but down here where all of us can scrutinise it. If one wants to change the principles or detail of primary criminal law, one should do it by primary legislation.
What will these orders be able to cover? My hon. and learned Friend the Member for Torridge and West Devon has been through those. These are fundamental restrictions on liberty, on where you can work, to whom you can talk, where you can go, who you can meet, what you can do with your money and matters of that nature. They apply to individuals, to partnerships, to unincorporated associations and to corporations. Most extraordinarily, we have these examples, which as my hon. and learned Friend pointed out, are merely examples of requirements that may be imposed:
“a requirement on a person to answer questions, or provide information, specified or described in an order...at a time, within a period or at a frequency...at a place...in a form and manner; and...to a law enforcement officer or description of law enforcement officer...notified to the person by a law enforcement officer specified or described in the order.”
It would be amusing, were it not so serious; even when serving the order, the authorities are entitled to break into your house to see if you are there to receive it. It strikes me as deeply worrying and concerning that the Government thought it appropriate to pass such legislation without more ado.
I will not delay the passage of the Bill this evening; I simply cannot. But I urge all of us—I know that my hon. Friends on the Front Bench are aware of this—to study the implications of the Bill, to think hard about the consequences of its passage, to test some of these ideas, to destruction if necessary, in Committee and to permit only what is necessary and only what can be justified to the public to become part of our criminal law.
The Minister said that it is a civil procedure or a civil matter; I have also heard the Under-Secretary of State for the Home Department, the hon. Member for Gedling
(Mr. Coaker), say that from a sedentary position. It is not a civil matter, except by description from the Government. In terms of the European convention on human rights, which the Government have domesticated into our jurisdiction and jurisprudence, we are talking about the imposition of savage penalties—five-year prison sentences—for breaching a civil order. That is a penalty in anyone’s book. If the Minister thinks that simply by mouthing the word “civil” in front of every piece of criminal procedure or criminal law that he brings into this House, he makes it actually a civil penalty, he is in a greater state of unknowing than I had previously thought that he and his colleagues might be.
I do not want to use the same sort of language as the Minister used in his speech but, with equal vehemence, I urge the House to be careful.
6.34 pm
Mr. Elfyn Llwyd (Meirionnydd Nant Conwy) (PC): Having heard two very powerful speeches, I can be rather briefer than I intended.
The hon. and learned Member for Harborough (Mr. Garnier) made some telling points and said that he would truncate his remarks after his hon. and learned Friend the Member for Torridge and West Devon (Mr. Cox) made a powerful speech, which showed a lot of understanding of the procedures that should inform these debates but frequently does not.
It was unfortunate that in opening the Minister referred to the “shenanigans” of lawyers. I confess to defending and prosecuting asset recovery cases, and I do not recognise the word “shenanigans.” It is always unfortunate when Ministers see fit to insult lawyers, and the Minister of State, although he was goaded from this side, concurred with that description. Let us remember that many thousands of people each year are acquitted of offences with which they have been charged; they are innocent people. Without the “shenanigans” of lawyers, heaven knows where they would end up. [Interruption.] “Even the odd Minister,” according to the hon. Member for Hornchurch (James Brokenshire). I am sure that that was not meant in any way to be personal about the Under-Secretary.
I was concerned that the Minister stressed that we are not talking about the civil standard of proof—that is to say, on the balance of probability—but about something nearer the criminal standard. He was relying on the case of McCann, in which the House of Lords suggested that, in many cases, there would be a civil standard but that, in some, it might move up to somewhere near the criminal standard. That does not satisfy me at all; even if the learned judges had said that in every case that would be so—I know that they were talking about a previous Bill, but the issue is the same—I would not be at all persuaded. Who decides to apply something nearer the criminal standard? When does that kick in? When is it appropriate to rely only on the civil standard? These are fundamental matters, especially when one deals with the draconian measures that may be introduced in lieu of these orders.
The Minister says that the civil standard of proof certainly will not apply. Clause 34 says:
“Proceedings before the High Court in relation to serious crime prevention orders are civil proceedings...One consequence of this is that the standard of proof to be applied by the court in such proceedings is the civil standard of proof.”
Clause 35, “Proceedings in the Crown Court”, says the same:
“Proceedings before the Crown Court arising by virtue of section 20, 21 or 22 are civil proceedings...One consequence of this is that standard of proof to be applied by the court in such proceedings is the civil standard of proof.”
The Minister, in what can only be said to have been rather intemperate language, said this, that and the next thing about organisations such as Liberty, which has said that the Government have got it wrong. When one reads the Bill, one cannot conclude otherwise. The only thing on which the Minister could fall back was to blurt out the McCann case; McCann says that the standard of proof could be the civil standard or almost, maybe, at times, something approaching the criminal standard. That is no good at all. Liberty is right in what it says, and I do not accept what the Minister says at all.
Everybody in this House is keen to make sure that we stem the rise of organised crime. Nobody would argue against that being a priority, but we must not throw away our civil protection—the protection that has been woven into the judicial process over many centuries—in an urgent rush to do something about organised crime.
This Government introduced antisocial behaviour orders, and they want to limit the right to jury trial and spend less on legal aid. We find the same steps being taken in every area we consider. I served on the Committee that considered the civil contingencies legislation. It is difficult to believe, but it is true, that a Government Whip can decide to declare an emergency. A Government Whip can also decide not to enter someone’s house to look for evidence, but to knock their house down, and the householder does not have a right to sue for damages. That is in the Bill. That might be thought of as small potatoes when compared with some other measures, but it does not make me feel any better.
There is a consistent drift—a constant attack on civil liberties and on the judicial process. The fact that the Minister prays in aid the thoughts of the judiciary in the McCann case shows that the Government are on the ropes. There is a certain frisson in the relationship between the Government and the judiciary at present, so it appears that the Minister was clutching at straws in trying to justify the Bill.
I am unhappy with the Bill. There are many examples of what might happen to people. It is unacceptable to condemn a person to house arrest without their having the opportunity to be tried properly on the accusation giving rise to the order. There are also restrictions on travel, on the use of a private dwelling, and on meeting and making arrangements with associates. All such restrictions are perfectly proper if a proper degree of proof has been established through the courts, but without that they are utterly unacceptable as they then amount almost to house arrest.
A breach of the conditions can give rise to a five-year prison sentence. Equally insidiously, the order can be renewed indefinitely. We should think about that. Does anyone fancy being under house arrest indefinitely? I would not like that. It is all very well saying that an appeal will lie somewhere or other, but I do not know where it will lie because presumably in the initial event a High Court judge will have imposed the order—and an appeal might well be difficult to mount in any case. These are serious matters. The Bill is rightly
called the Serious Crime Bill—it jolly well is a serious crime Bill from my point of view.
Why does Parliament have a Joint Committee on Human Rights? On 25 April, the Committee reported serious misgivings about the serious crime prevention orders in part 1 of the Bill. It considered that the SCPO provisions raised three significant human rights issues: first,
“whether SCPOs amount to the determination of a criminal charge for the purposes of the right to a fair trial in Article 6(1) of the”
European convention on human rights; secondly,
“whether the standard of proof in proceedings for an SCPO should be the civil or the criminal standard”;
“whether the power to make SCPOs is defined with sufficient precision to satisfy the requirement that interferences with Convention rights should be ‘in accordance with the law’ or ‘prescribed by law’”.
The Committee also says in its report:
“The Government argues that SCPOs do not involve the determination of a criminal charge and therefore do not attract the full panoply of fair trial protections contained in Article 6”.
The Committee strongly disagrees. It goes on to mention that the Bill expressly provides that proceedings for those orders are civil proceedings and the standard of proof to be applied is the civil standard. It adds that it follows from the Committee’s view
“that SCPOs amount to the determination of a criminal charge”,
“that the standard of proof should be the criminal standard not the civil standard.”
Reference has been made to McCann, and I shall do not do so again. Suffice it to say that grave concerns are felt by a range of organisations, including the Bar Council, the Law Society, Liberty and Justice. I would not argue with the Government if what they were asking the House to sanction was intended to be imposed after a thorough examination of the evidence, where on a proven basis a person was convicted or found to require this kind of order. I would still be unhappy about the indefinite imposition of those conditions, but I could not reasonably argue about the imposition of an order. However, the measure in its current form is an attack on our criminal justice system. It is an attack on the presumption of innocence, the equality of arms and, crucially, the right to a fair trail before an independent court. Almost every aspect of the system is being attacked.
I hope that the Government will think again about the orders in Committee. We in this place far too often use the word “draconian”. [Interruption.] The Minister says, “hear, hear.” However, in this instance it is fitting and proper for that word to be used. The far-reaching matters I have referred to should be looked at properly, and these orders should not be established in their current form.
Liberty has sent a full document setting out numerous reasons why it feels strongly about this latest incursion into our basic human rights. All the points it makes are salient, but I shall briefly refer to a couple that have not hitherto been addressed. Liberty is concerned about SCPOs because they are civil orders and they continue the trend of undermining the criminal justice system—the hon. and learned Member
for Harborough mentioned that. It is also concerned about the introduction of the SCPO because it avoids
“the rigour of a criminal trial by using the civil standard of proof”.
“Because breach of the order is a criminal offence, this blurs the boundary between civil and criminal law”.
As a breach is a criminal offence, it
“can act as a short cut into the Criminal Justice System”.
That is one of the reasons we are discussing this matter. The hon. and learned Member for Torridge and West Devon eloquently addressed it. There is a cumbersomeness about the criminal justice system in respect of acquiring evidence, putting it before the court, and in proving the case—but so there should be. We are talking about people’s reputations and liberty. If we are not careful—cumbersome—about such things, where are we headed? These orders might well be a short cut to get the ultimate result without the necessary standard of proof and the necessary court process. This runs a cart and horses through the Human Rights Act 1998.
Justice feels strongly, too. It says that the SCPOs
“should not be used as a substitute for criminal proceedings”;
“cannot provide sufficient protection for the public in very serious cases”;
“can be imposed in too wide a range of circumstances, compromising legal certainty”;
“controls that can be imposed on the recipient could be so severe as to amount to a criminal penalty; in these circumstances, the civil standard of proof is inappropriate”.
Those worrying remarks were echoed in previous speeches. These people are used to the criminal justice process, and before anyone says that they are lawyers who are special pleading for themselves, I should point out that there is nothing in this for lawyers. This is not special pleading. Rather, we are pleading on behalf of our constituents and, ultimately, for their constitutional rights—the all-important and ancient rights of our citizens, which are being chipped away at in one Bill after another.
I remember asking the Prime Minister last year how many new crimes had been put on to the statute book. I suggested that while he was thinking about it he might like to leave an aide-mémoire in the Library each week, so that we could be reminded of how many we have created. As the hon. and learned Member for Harborough never goes out, because he is always making sure that he holds this Government to account, even he does not know the exact number, and neither do I. I doubt whether anybody does. [Interruption.] Indeed—nor do the Government. So it might help us all if we had a decent, honest aide-mémoire each week in the Library.
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