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under the Bill. That tells me that further uncertainty remains, and that the Bills elliptical definition leaves a real doubt as to the Bills scope and the extent of its application.
The hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) made an important point about the standard of proof needed when an SCPO is applied for, and I shall say more about that later in my remarks. He asked about the justice and appropriateness of an ability to create a virtual house arrest for ever and a day. Those are very serious matters in the context of the human rights issues that he highlighted, and we shall need to examine them closely and carefully as scrutiny of the Bill continues in Committee.
My hon. Friend the Member for Newbury (Mr. Benyon) spoke of the potential shift in the balance between the individual and the state, and about the implications of the Bills ambiguous and uncertain language. He also drew on his experience as a member of the Home Affairs Committee in respect of the gun crime amendment agreed in the other place, and we will examine that provision closely to see whether what the Minister said about its necessity and scope was correct. We will look at that matter in detail to determine whether it should remain in the Bill, subject to appropriate amendment and consideration.
Finally, my hon. Friend the Member for Bromley and Chislehurst (Robert Neill) asked whether the Bill was to some extent motivated by expediency, and he also pointed to its lack of specificity. There is little doubt about the concerns that have been expressed, but the Minister in the other place, Baroness Scotland, portrayed the SCPOs as a practical way to stop crime happening. On Second Reading there, she said:
These orders are not about punishing people without proof; they are not punitive. Rather they are proposed to be preventative.[ Official Report, House of Lords, 7 February 2007; Vol. 689, c. 729.]
However, if prevention is the key, as she suggests, recent history indicates that the new orders are unlikely to fare well.
As we have heard, SCPOs have been described as hybrid of ASBOs and control orders. Yet breaches of ASBOs are running at around 60 per cent., and there have been obvious examples of the failure of control ordersa third of them have been breached, and six people remain at large. In that context, when the Under-Secretary of State for the Home Department, the hon. Member for Gedling (Mr. Coaker), winds up, will he indicate to the House what measures will be implemented to monitor compliance with the orders, and what degree of compliance will be expected? Alternatively, is it expected that the orders will in fact be breachedas has been suggestedand that their whole purpose is to secure a custodial sentence? Is the deliberate aim of the measures to find a way round the criminal justice system? When the Minister opened the debate he was at pains to stress that that was not the case, but those issues need careful and close examination to ensure that the fears expressed with some passion from the Opposition Benches are not borne out and that if appropriate protections are still required they are included in the Bill.
There is a more general question about whether the orders are the right way to proceed. The Law Society briefing for the debate notes:
Where there is evidence that a person is engaged in criminal activity, that evidence should be gathered with a view to prosecuting them. We fear the proposed orders are a measure of expediency to deal with cases where a prosecution is not possible because there is insufficient evidence.
It is interesting that the Bill contains no provision for consideration of whether a prosecution is possible before application for an SCPO. The Prevention of Terrorism Act 2005 incorporates such protection in relation to control orders and requires that the possibility of prosecution be kept under review for the duration of the order, yet the Bill does not. The Minister needs to explain why not.
The Minister may suggest that the orders are intended to be targeted only at Mr. Bigs and that only a relatively small number will be sought, but there is nothing to stop prosecutors applying for them as a matter of course if they are not confident that they have enough admissible evidence to obtain a conviction from a jury. The position is made more complex by the likely interpretation of the orders by the courtsa point made eloquently by my hon. and learned Friend the Member for Torridge and West Devon and also by the hon. Member for Meirionnydd Nant Conwy. The McCann case in the House of Lords was highlighted in the context of antisocial behaviour orders; it was suggested that in certain circumstances, for fairness, something close to the criminal standard would be applied, yet clauses 34 and 35 show clearly the intention that the civil standard should apply. We need clear legal analysis of the impact of those provisions. If the House, in full knowledge of the McCann judgment, decides that it wants to include that provision in the Bill, is it open to the courts to say that is what would happen? I hear what the Minister has said and I note the comments of Baroness Scotland in the other place, but there is room for uncertainty. We should always aim for certainty in legislation, so we should consider including a provision in the Bill so that the matter is put beyond doubt.
The Bill provides for the admissibility of intercept evidence in cases involving serious crime. For the reasons outlined by my hon. Friend the Member for Arundel and South Downs, we are reserving our position on those provisions until the basis of the Governments approach to the Privy Council review is clear.
The Bill includes provisions to facilitate greater data sharing and data mining in the fight against fraud. It is entirely appropriate that we make the best use of data systems to detect and prevent fraud, but the measures must be proportionate and balanced against the need for general personal privacy. The Bill introduces wide-ranging powers that could allow, for the first time, widespread data sharing between the public and private sectors. It could overturn the basic data protection principle that personal information provided to a Department for one purpose should not in general be used for another. Instead, information will normally be shared in the public sector, provided it is in the public interest.
Although the Audit Commissions national fraud initiative, on which the Bills data-mining provisions are based, is important, it is essential that protections be clear and robust. As Members have said, random
computerised phishing exercises into our personal data would not be acceptable. In the other place Baroness Scotland gave assurances about the data-sharing provisions. She said that the Government
will ensure that the provisions are used to target suspected fraudsters rather than simply those who are potential fraudsters.
The Minister made the same point when he opened the debate. Baroness Scotland also said that the Government would ensure that
the arrangements are transparent and command public confidence, are proportionate and are subject to periodic review.[ Official Report, House of Lords, 7 February 2007; Vol. 689, c. 732.]
The role of the Information Commissioner will be an essential part of ensuring that the Bills provisions are appropriate, and it may need strengthening in that context. We shall examine that point in greater detail in Committee. We look forward to the detailed proposals for a code of practicea promise made in the other place and reconfirmed today. Some progress was made on the issue in the other place and I pay particular tribute to the work of my noble Friend, Baroness Anelay, but there is more work to be done.
The Information Commissioner has warned of the steady drift to a surveillance society, which the provisions in part 3 could indicate in terms of the Governments approach to taking, retaining, sharing and searching our personal information. Protections may exist under the Data Protection Act 1998 and the Human Rights Act 1998, but the House must be satisfied that the Bills provisions are sufficiently focused on tackling crime and that appropriate protections are afforded to ensure that the general rights of ordinary members of the public are not compromised by wide-ranging snooping powers justified on the basis that something useful might come up from the information obtained.
The Bill will transfer the Assets Recovery Agency to the Serious Organised Crime Agency. Despite what the Minister for Security, Counter Terrorism and Police says, the ARA has been a failure. The Chairman of the Public Accounts Committee, my hon. Friend the Member for Gainsborough (Mr. Leigh), recently summed up its performance by pointing out that it had spent £65 million but recovered only £23 million; has no complete record of the cases referred to it; has worked on more than 700 cases but managed to recover assets in a mere 52; and that 90 per cent. of the financial investigators trained by it have not even completed the necessary courses. As my hon. Friend said,
the criminal fraternity are laughing at us, are they not?
It is thus hardly surprising that the Government felt compelled to take action, which is why the Bill proposes to transfer the assets recovery functions of the agency to SOCA and its training functions to the National Policing Improvement Agency. However, the National Audit Office report on the ARA made various recommendations that will apply equally to the new bodies responsible for its current functions; case management was highlighted as a particular weakness. In assessing the provisions for transferring the operations of the ARA we will need to be satisfied that there will be appropriate measures to address the evident performance failures and the issues highlighted by the NAO report.
Transparency is needed, particularly in the future performance of SOCA, which has not been subject to detailed public scrutiny to date. In evidence to the Public Accounts Committee, the Comptroller and Auditor General gave an assurance that it would continue to be possible to assess whether the costs of the asset recovery function of the SOCA exceed or are less than the assets it recovers, confirming that a proper system of management accounts will be put in place. For the House to have confidence in the arrangements proposed in the Bill, mechanisms for proper, robust, external scrutiny of SOCA are essential. After the failure of one agency, it is important that the House can review the performance of its replacement and that the information can be made public.
We welcome the inchoate offences provisions, which build on the excellent work of the Law Commission. In the other place, the Government set out some of the rationale for their divergence from some of the Law Commissions original proposals, but we will use opportunities in Committee to probe the detail of their proposals to ensure that the appropriate balance has been struck. We shall also examine carefully the extended powers being granted to Her Majestys Revenue and Customs.
There is a shared desire on both sides of the House to ensure that those involved in serious crimecrime that harms this country and damages the lives of those it touchesare brought to justice, that the law enforcement agencies are given appropriate powers to disrupt the activities of organised criminal gangs, and that the Government and other agencies are able to use information in a constructive way to facilitate the fight against fraud. However, serious questions remain as to whether the provisions of the Bill will advance this cause and whether, by virtue of the breadth of the Bills scope and the practical operation of its provisions, it may undermine some of the fundamental values and freedoms that the House should be seeking to uphold and protect. That is where Conservative Members will maintain our focus and will challenge the Government robustly when we believe that they fall short.
The Parliamentary Under-Secretary of State for the Home Department (Mr. Vernon Coaker): I start by saying a couple of things about the general tenor of the debate. I welcome very much the thoughtful and passionate contributions that hon. Members have made. I thank the hon. Members for Arundel and South Downs (Nick Herbert), for Hornchurch (James Brokenshire), for Taunton (Mr. Browne), the hon. and learned Member for Torridge and West Devon (Mr. Cox) the hon. Member for Bromley and Chislehurst (Robert Neill), who has apologised for having to leave early, the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd), the hon. and learned Member for Harborough (Mr. Garnier) and the hon. Member for Newbury (Mr. Benyon) for their contributions to the debate. If I do not answer all their questions in my remarks, I hope that we will, as they have suggested, return to many of them in Committee.
I accept absolutely that all Members on both sides of the House are determined in their efforts to tackle serious crime. I say that because it is an important point to make. There may well be differences, debates and arguments about some of the proposals before us,
but I do not ignore the fact that all Members are dedicated to working towards the same aim.
I have listened with interest to the debate and some hon. Members have referred to centuries of tradition. The hon. Member for Taunton said that I had answered a parliamentary question today, which I have, about mandatory minimum sentences of five years for the possession of a handgun. He pointed out that although Parliament had passed the provision, the judiciary, in determining the appropriate sentence, had not in all cases given the five-year sentence. That is because the legislation gives the judiciary the opportunity to take account of exceptional or extenuating circumstancesI cannot remember the exact phrase in the law. The hon. Gentleman cannot castigate me for being responsible for legislation that does not result in the judiciary automatically giving a five-year sentence and then, two minutes later, castigate me, my hon. Friend the Minister for Security, Counter Terrorism and Police and the Government for undermining centuries of tradition if we are not able to dictate to that same judiciary that it should have no independence and that it should automatically and without any reference to extenuating circumstances apply the five-year sentence.
I make that point because it is fundamental to this debate. We cannot pick and choose with respect to constitutional principles. The hon. Gentleman chose to have a go at me and the Government about the minimum five-year sentence and will no doubt suggest that the Government are failing on gun crime because it is not being applied, but he then said that the Bill was a wicked erosionI paraphraseof centuries of tradition in this country since the Magna Carta.
Mr. Coaker: It will be interesting to hear whether the hon. Gentleman supports the independence of the judiciary, or perhaps has another explanation.
Mr. Browne: I did not wish to cause the Minister personal offence. The point that I was trying to make was that when there was an outbreak of public concern about gun crime and the Prime Minister called a gun summit at No. 10 Downing street, and legislation on gun crime went through the House in various criminal justice Bills to put in place a mandatory five-year sentence, the overall effect of that range of activity was to convey to the public that the Government were tough on crime and, by implication, that the other parties in the House were less tough on crime. I was making the point that legislation is not always brought before the House with the intention of trying to make the laws of the land more effective; it is there for presentational purposes and to have an eye-catching approach, as the Prime Minister put it. Quite often, it does not actually work in practice.
Mr. Coaker:
With respect to the hon. Gentleman, the point that I was making, as I think every other hon. Member appreciates, was that one of the problems of an independent judiciary is that it sometimes makes decisions or interprets the law in a way that he and others find difficult. The hon. and learned Member for Torridge and West Devon said that centuries of tradition were in danger of being swept away, but all that I was saying is that people sometimes see centuries of tradition being swept away when they disagree with
something that the Government propose. As with all things, we need to reach a compromise.
I am grateful to everyone for contributing to the debate and will now turn to some of the points that have been made. On serious crime prevention orders, I emphasise the potential usefulness of a flexible measure against those who engage in insidious crimes with intelligence and adaptability. The orders can be made only, as McCann stated, when it can be proved beyond a reasonable doubt that the subject has been involved in serious crime. The conditions contained in the orders will only be preventive, not punitive, and will be entirely in accordance with the European convention on human rights.
Two categories of points seem to have been made in the debate: those about principle and those about practice. On principle, the main points were about whether the orders would be a means of circumventing the criminal process. One particular point made by Opposition Members was why we would want to prosecute when we can seize assets and impose major restrictions on liberty on the basis of an ex parte hearing. Those who made that point were wrong. It will not be possible to seek these orders on an ex parte basis and the interpretation of the way in which the orders work is a complete misunderstanding of the Governments intention. The orders will not be an easy option to be used in place of criminal prosecutiontheir purpose is completely different. Prosecution is about punishing previous actions, whereas these orders are about preventing future involvement in serious crime.
In addition, to assert that the orders are an easy option is to misunderstand and underestimate the role and expertise of the High Court. The applicant authority will have to convince the High Court, to a standard that we expect to be close to beyond reasonable doubt, that the proposed subject of an order has been involved in serious crime. That will be no simple task. As we may recognise, High Court judges do not fall over themselves to agree necessarily with the Governments view. The court is a public authority for the purposes of the Human Rights Act 1998 and so will only make an order that is reasonable, proportionate and compatible with convention rights.
Mr. Cox: The Minister says that the orders will be dealt with on the basis of reasonable doubt, and I have every respect for those who are briefing him. I am sure that they know a great deal. However, the reality is that the consultation document that his Government produced made it clear that one of the main reasons for introducing the orders is that, in some circumstances, they would not be able to acquit themselves of the reasonable doubt standard. In cases in which evidence fell below that standard, there would be a justification for the order. The Minister is making a good speech and I applaud and commend the tenor of it, but with respect, he cannot have it both ways. If the reasonable standard test is too high, the civil standard of proof will be used, not reasonable doubt.
Mr. Coaker:
The remarks that I am about to make will answer the hon. and learned Gentlemans question, at least in my eyes if not in his. Clauses 34 and 35 set
out that the civil standard will be applicable. However, we accept that that standard is flexible and that, in the light of the House of Lords judgment in the case of McCann, the court will probably expect the heightened civil standard of beyond reasonable doubt to apply when deciding whether a person has been involved in serious crime. If the hon. and learned Gentleman reads the McCann judgment, he will see that it makes it clear that there is a flexible standard that can be applied to civil orders and that, in respect of involvement in serious crime, the expectation would be that the level of evidence required, if not identical to the criminal standard, would be nearly identical to it. He may disagree with the House of Lords judgment, as the hon. Member for Meirionnydd Nant Conwy did, but
Mr. Llwyd: I did not disagree with the House of Lords judgment. I said that the judgment allows for a civil standard or almost a criminal standard. That is not to say that that will be applied anywhere else.
Mr. Coaker: I apologise if I unfortunately made it appear that a barrister was somehow at odds with the judgment of the House of Lords.
Mr. Llwyd: Perish the thought.
Mr. Coaker: Perish the thought, as the hon. Gentleman says. I did not mean to do that at all. All that I was trying to do was point out that we think that the McCann judgment is very relevant to the application of evidence when it comes to serious crime prevention orders.
Mr. Garnier: I do not want to add more confusion where there is plenty already, but in my experience, in a civil proceeding that may involve criminal allegations, the court, in order to be persuaded of those allegations, will still apply the civil standard, but it will slide up the civil standard. If there is an allegation of murder, the court will require to be better persuaded than if there is an allegation that somebody parked on a double yellow line. That is simply a flexible application of the civil standard. The Minister should not persuade himself that the Bill [ Interruption. ] The Minister can take the advice of the Leader of the House or my adviceI think that I have practised a little longer than the right hon. Gentleman. The Minister is making a false argument if he is relying on McCann to demonstrate a point that plainly is not the case.
Mr. Coaker: I am not making a false argument. The argument that I am using is the argument used by the House of Lords in its judgment with respect to McCann. The application of that judgment to serious crime prevention orders will be particularly useful.
In schedule 1, we have laid out a list of the offences that we regard as serious. As hon. Members have pointed out, the list is not exhaustive, but we think that it will be an important guide as to what we mean when we talk about serious crime.
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