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Well, there is an issue in the way in which civil orders can be used for crime prevention. The hon. Gentleman is right to highlight the fact that
the orders can be used in two separate ways. One is almost as a post-bail or a post-conviction prevention order, in which the intention is almost to get someone back behind bars as soon as possible by virtue of a breach. That is a criticism that has been levelled at some of the other civil orders that the Government have introduced. The other is use of the order before any criminal conviction has been obtained, and that raises issues of appropriateness, especially when the criminal law could be applied and some sort of criminal sanction invoked. That is a point that we will debate in greater detail when we reach serious crime prevention orders later.
The tests for making or varying a serious crime prevention order
do not operate in relation to an order so far as the order contains terms of the kind envisaged by subsections (4) and (5) above.
In other words, monitoring should occur. The particular parts of the Bill that are being carved out by that provision are those to do with preventive measures. For example, I draw the Ministers attention to clause 1(1)(b), which provides that the court may make an order if
it has reasonable grounds to believe that the order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime in England and Wales.
In other words, that limbthe necessity for the court to be satisfied that the order would prevent crimewould be carved out by new clause 1(6). That is a bit odd, if the intention is to prevent, rather than to punish. That is an important point for how the orders are used and, in terms of the European convention on human rights, to ensure that the Bill is not construed as providing for punishment. It is essential that the orders should be preventive, not punishment, but new clause 1(6) would take out all the relevant provisions on orders that will have a monitor granted to them. That is perverse and bizarre and, when the Minister winds up, I trust that he will give some explanation of it.
The way in which the provision is drafted suggests that it may also apply to the whole of the serious crime prevention order, rather than just to the monitoring aspects. That would make the orders very wide and draconian in their application in the particular aspects. The late inclusion of this wide-ranging new clause raises many questions, and it has not had proper scrutiny and debate.
Mr. Coaker: The hon. Gentleman made a reasonable point about the application of new clause 1(6), but then made the wild assertion that it would apply to serious crime prevention orders as a whole. If he reads further, he will see that it is limited to the new clause, and does not apply to the whole Bill.
in relation to an order.
so far as the order contains terms of the kind envisaged by subsections (4) and (5) above,
it does imply that it could apply to orders more generally. However, I welcome the Ministers intervention to make it clear that the provision is intended to deal only with the monitoring aspects, not the aspects of wider concern. Even so, in terms of monitoring, surely the orders should be intended to prevent crime. Otherwise, why are they there? He has said that the provision is not intended more generally, but it is still questionable whether the removal of the sections in question will cause problems with compliance with the European convention on human rights. Perhaps he can reflect on that point in further detail when he winds up.
The Minister said that the costs will be dealt with in secondary legislation, so we do not yet know how they will be assessed. How will appeals against the costs work? New clause 2 states that costs could be subject to appeal, and that
Such provision may, in particular, include provision about appeals.
The proposals note that the steps an enforcement agency can take to recover costs will also be covered by secondary legislation, but again the Minister has not talked in great detail about the Governments intentions in that regard. Will the relevant enforcement agencies have the right to bankrupt and wind up a company that is unable to pay for monitoring costshowever damaging their impact might be?
The Government have decided to introduce these provisions hurriedly at a late stage, and there is a lack of detail in terms of costs, how the courts will assess companies, whether appeals against the costs will be allowed and how they will operate, what the time scales will be and what the rights of challenge will be. Once the costs are in place, what rights will enforcement agencies have and how will they operate in practice? What discretion will the agencies have in recovering the costs?
I accept that if costs are levied it is right, on the face of it, that the company should pick them up, but there is a duty on law enforcement to deal with its monitoring. The proposals could place a significant burden on companies and the House is not yet clear about the context for the provisions or their scale and nature. Based on the information we have been given, I remain concerned about the risk of injustice due to the lack of clarity and certainty in new clauses 1 and 2.
I echo the concerns that have just been expressed about the introduction of such wide-ranging and important provisions at this stage of our deliberations. We had opportunities for exhaustive discussion of the Bill in Committee, when we went through it in great detail, so it is alarming that new provisions are being introduced in this way.
Three aspects of the new clause give me cause for concern, and I shall be interested in the Ministers response. The first is that the provision is extremely wide-ranging. It shines a light on a larger concern about
the Bill as a whole, which is that there are conflicting stories about the number of people who will be caught up by the provisions.
In Committee and in his speech today, the Minister was keen to stress that the provisions will apply to only a small number of people. Those assurances are not in writing in the Bill, but the background mood music is that we need not be overly concerned that the provisions will be routinely applied, as they will catch only a small number of particularly burdensome criminals. None the less, representations to me from agencies and others who are broadly supportive of the measure make much more extravagant claims about its impact on my constituents. If 30 or 40 people a year are caught up by the provisions, it is unlikely that any of them will be my constituents. Of course, there will be a knock-on effect in terms of the impact that is caused, but it would be interesting to know how many people are likely to be caught by these provisions. Although there is a point of principle, a matter of degree also applies, and so far, that is not at all clear.
The second point that gives cause for concern is that the specific people are not defined in the Bill. Therefore, it is difficult to understand how, when such services are contracted out to various outside agencies, checks and balances will be in place to ensure that the powers are wielded responsibly and in a way that would satisfy an elected representative, such as myself.
The third issue that gives me cause for concernI would be interested to hear the Ministers responsewas raised by the hon. Member for Hornchurch (James Brokenshire) and relates to the obligation on the subject of the order to pay the costs. That could be a very serious sanction against someone who has not necessarily committed a criminal offence. I would be interested to know whether the Minister felt that there could be a cap on those costs. I ask him for more detail on how he thinks that will work in practice.
Mr. Coaker: I am grateful to the hon. Member for Hornchurch (James Brokenshire) for recognising the complexity of the Bill and for, quite frankly, the decent way in which he admitted that fact. Some of these provisions are very technical, complex and difficult. That is why some of these amendments are being debated on the Floor of the House. I make no apology, however, for introducing something that will significantly improve the Bill. It would be somewhat ridiculous if, because I might be embarrassed about the fact that the hon. Gentleman would complain about such late additions to the Bill, I did not introduce amendments that improve it and make a significant difference to it. All I can say to the hon. Gentleman is that I apologise for the late introduction of new clause 1 and to the House for the lateness of some of the amendments, but I do not apologise for the fact that provisions, such as new clause 1, will make a significant difference and are significant improvements to the Bill, and it is therefore important that we debate them today.
James Brokenshire: The Minister says that he believes that new clause 1 will make a significant difference. He has also said that, in essence, about 30 such orders will be granted a year. How many orders does he think will be granted subject to the monitoring requirements set out in these new clauses?
Mr. Coaker: I do not know the answer to that, but the serious crime prevention order as laid out in the Bill should be available to the courts. That will be a matter for the courts, and it will be for the applicant authorities to go to the courts where they think it appropriate and where they think that a serious crime prevention order will seriously impact on crime. With respect to new clause 1, the inclusion of authorised monitors is important because it will make the serious crime prevention orders more effective, as they apply to businesses and organisations. Let me suggest to the hon. Gentleman and to the hon. Member for Taunton (Mr. Browne) that I would have thought that all of us are united in wanting to ensure that serious crime prevention orders imposed on businesses and organisations are enforced and made to work, so that we can all see that they have credibility, and the use of authorised monitors will ensure that the terms are agreed to and, importantly, complied with.
The hon. Member for Hornchurch talked about complexity. I said in my introductory remarks that businesses might want to use the complexity of the arrangements to hide accounts, transactions or what they are doing. That means that law enforcers will at times need the experience, ability, knowledge and skills of forensic accountants, who can scrutinise the accounts in a way that many law enforcers cannot. That means that the serious crime prevention order will prevent the serious crime that we are talking about. When such an order is made, we will be able to ensure that the terms are agreed with.
He talked about the arrangements relating to costs. Of course, the courts will consider the costs when making an order. If the costs change, it is open to the subject to apply to the court for variations to the costs set out in the order.
The hon. Gentleman raised a point about bodies knowing whether they are subject to an order. An organisation will either have to be represented at proceedings, or be sent a notice by recorded delivery or hand delivery, before the order takes effect, so they will have knowledge of the order and its terms. As he will remember, if an organisations actions are reasonable, those actions cannot form the basis of a finding that it has acted in a way that has facilitated, or is likely to facilitate, serious crime. The burden is on the organisation to prove reasonableness, because the organisation is best placed to know the background to its actions. If an applicant authority wants to make a body the subject of a serious crime prevention order, that body can use a defence of reasonableness in court. We went through that many times in Committee, as he knows. If the organisation can demonstrate that its actions were reasonable to the satisfaction of the courts, it will not be made the subject of a serious crime prevention order.
As the hon. Gentleman will know, it is for the court to assess the evidence before it, as is the case for courts in all sorts of situations, and it is for the court to decide whether an organisation has acted reasonably under the group of new clauses that we are discussing. That is the protection against the injustice that the hon. Gentleman talked about.
James Brokenshire: The Minister highlighted the point about the assessment of the court, but that is really a question of the information presented to the court. It may not be presented with a full picture. He chided me for criticising him for the late notice of the new clauses, and our late consideration of them. What discussions has he had with the Law Society, or similar third parties that are acutely involved in considering the provisions, given that the provisions are complex, and will sit on top of an already complex situation? The complexity of the new provisions causes me concern because of the potential injustices that may arise as a result of it.
Mr. Coaker: I apologise if I chided the hon. Gentleman too harshly; I did not mean to. He will know that we are taking forward the amendments as a result of the Hampton review and the Macrory report. They pointed out the need for appropriate and proportionate regulation, and that is what we have ensured. The hon. Gentleman talked about new clause 1(6), which switches off the test in clause 1(1)(b), and asked what the justification was for that measure. It is difficult to show that authorised monitors would directly prevent serious crime, but it is important to ensure that the parts of the order that would directly prevent serious crime are complied with. That is why we included the authorised monitors in the provisions.
The hon. Gentleman asked whether the Bill complies with the European convention on human rights. He will have seen my statement on the subject but, again, I refer him to the protections in the new clause, which ensures that a court cannot appoint an authorised monitor to supervise a serious crime prevention order without taking into account certain circumstances, particularly those in proposed new subsection (7)(c), which refers to
the effect of the terms on the ability of any body corporate, partnership or unincorporated association which is carrying on business to continue to do so.
In other words, if a serious crime prevention order is served on an organisation, and if an authorised monitor is used to ensure compliance with the order, the court must ensure through proposed new subsections 7(a), (b) and (c), that the measure is proportionate and takes into account the ability of the organisation or partnership to comply with it. With those comments, I urge the House to support the new clause.
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