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Session 2006 - 07
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General Committee Debates
Serious Crime Bill [Lords]

Serious Crime Bill [Lords]



The Committee consisted of the following Members:

Chairmen: Mr. Joe Benton, † John Bercow
Blunt, Mr. Crispin (Reigate) (Con)
Browne, Mr. Jeremy (Taunton) (LD)
Campbell, Mr. Alan (Lord Commissioner of Her Majesty's Treasury)
Coaker, Mr. Vernon (Parliamentary Under-Secretary of State for the Home Department)
Cox, Mr. Geoffrey (Torridge and West Devon) (Con)
Gwynne, Andrew (Denton and Reddish) (Lab)
Herbert, Nick (Arundel and South Downs) (Con)
Hogg, Mr. Douglas (Sleaford and North Hykeham) (Con)
Lucas, Ian (Wrexham) (Lab)
McDonagh, Siobhain (Mitcham and Morden) (Lab)
Moran, Margaret (Luton, South) (Lab)
Mountford, Kali (Colne Valley) (Lab)
Reed, Mr. Jamie (Copeland) (Lab)
Rogerson, Dan (North Cornwall) (LD)
Sutcliffe, Mr. Gerry (Parliamentary Under-Secretary of State for Justice)
Wright, Mr. Iain (Hartlepool) (Lab)
Wright, Jeremy (Rugby and Kenilworth) (Con)
Emily Commander, Committee Clerk
† attended the Committee

Public Bill Committee

Thursday 28 June 2007

(Morning)

[John Bercow in the Chair]

Serious Crime Bill [Lords]

Clause 5

Involvement in serious crime: supplementary
9 am
Mr. Douglas Hogg (Sleaford and North Hykeham) (Con): I beg to move amendment No. 87, in clause 5, page 5, line 5, leave out subsection (2).
The Chairman: With this it will be convenient to discuss the following amendments: No. 88, in clause 5, page 5, line 7, leave out ‘ignore’.
No. 89, in clause 5, page 5, line 8, at beginning insert ‘ignore’.
No. 6, in clause 5, page 5, line 10, leave out paragraph (b).
No. 90, in clause 5, page 5, line 10, leave out ‘subject to this’ and insert ‘have regard to’.
No. 94, in clause 5, page 5, line 12, leave out subsection (3).
No. 91, in clause 5, page 5, line 15, leave out ‘ignore’.
No. 92, in clause 5, page 5, line 16, at beginning insert ‘ignore’.
No. 93, in clause 5, page 5, line 18, leave out ‘subject to this’ and insert ‘have regard to’.
Mr. Hogg: Thank you very much, Mr. Bercow. Nine o’clock is an awfully early hour for me—I am not used to this. However, I have to get my mind round it. I am trying to remember what I was seeking to do when I drafted the amendments. I think that I remember.
The group has a twofold purpose. The first is to delete subsection (2) with the object of striking outthe facilitator as somebody who is caught by the provisions. Secondly and differently, subsection (2)(b) will direct the court to ignore what lawyers would describe as the mens rea. For the purposes of Hansard, it is mens rea, not “mens rear”. That mistake has sometimes occurred. As I have just been to a puppy show, it is all the more likely to occur, but that is by the by—[ Laughter. ] It is 9 o’clock, Mr. Bercow, I am so sorry. The purpose is to direct the court to the ordinary standards of mens rea.
I will deal with the two proposals, seriously. First, I have very grave doubts about the question of catching the facilitator as a matter of principle, which I have spoken of before, because the facilitator is not necessarily committing a criminal offence known to the law. He or she might commit such an offence because facilitation may amount to aiding and abetting and could be part of a conspiracy. I concede that, as a matter of law, the facilitator might be a person who is committing a substantive offence under existing law, but that is not necessarily so.
I am uneasy about including the facilitator as somebody who can be caught by the full ambit ofthe serious crime prevention orders, especiallywhen the concepts of intentional and wilful acts are not incorporated as necessary preconditions to the facilitator being caught, as is now the case, which is why I want to remove the facilitator from the scope of the order-making powers. That is the first of the purposes reflected in the group of amendments. If I cannot win on that, I would like to direct the court to have regard to the mental state of the facilitator when determining whether it is right to make the necessary or allowed orders.
The Parliamentary Under-Secretary of State for the Home Department (Mr. Vernon Coaker): The right hon. and learned Gentleman will know that the Government take particular account of the McCann judgment. In respect of mens rea, the House of Lords determined that the proceedings were civil and that the following factors contributed to this decision. The question of whether a person has acted antisocially, as set out in section 1(1)(a) of the Crime and Disorder Act 1998, is an objective inquiry and no mens rea needs to be proved. Given our belief that the McCann judgment will inform practice in respect of serious crime prevention orders, is that not an important point?
Mr. Hogg: Forgive me, but I think that that point reinforces my argument. I am perfectly prepared to accept that that is true in the case of the McCann judgment, although I have studied it not on the question of strict liability, but on the question of the standard of criminal proof. I am perfectly willing to accept that the hon. Gentleman is right. I do not like cases of strict liability. They are better than cases of absolute liability, but not much.
Let us say that the proof of antisocial behaviour for an ASBO is strict liability. First, I do not like it. It is a proposition that I do not wish to extend to serious crime prevention orders, especially as their scope is much greater than the ordinary ASBO—they are referred to colloquially as super-ASBOs. The ordinary ASBO is relatively tame in contrast to the powers contained in clause 6. I do not wish to impose strict liability. That is exactly what I am arguing against, notwithstanding the fact that the Lords may have approved it in McCann. We are the House of Commons. We have a right to set the law for the courts to interpret, and it is interpreted in accordance with the corrections we give, subject to the convention on human rights.
I want to provide that, before the order can be made, the court must have regard for knowledge, intention and motive. It must have regard for at least knowledge and intention—I think motive, too. Otherwise there is strict liability. The effect of my amendment would be to strike out the part of the clause that directs the court to ignore those considerations, and incorporate them, if necessary, as preconditions. I might not persuade the Committee, but that is another matter. I believe that that is what we ought to do and if we do not do it here, I hope that it will be done in another place.
Nick Herbert (Arundel and South Downs) (Con): I agree with my right hon. and learned Friend that it is very early in the morning to be considering such legalistic matters, particularly when some of us do not have his great legal expertise. Nevertheless, I think that he has drawn attention to an important matter relating to the Bill.
I would particularly like to focus on clause 5(3) and its relationship with the amendment that my right hon. and learned Friend proposed to subsection (2). As we know, a person does not have to have committed or even been convicted of a serious offence to be eligible for a serious crime prevention order; they can receive an order if their conduct was likely to facilitate such an offence. In an earlier discussion on the measure, my right hon. and learned Friend expressed his concerns about that concept of facilitation and the extent to which it broadens the application of the measure. However, an additional concern is that the definition of conduct under clause 39, which is the interpretation clause of part 1, can “include omission and statements.” Clause 5(3) states that a court must ignore the person’s intentions. In other words, he does not actually have to intend to facilitate a serious offence or even believethat his actions would do so. Effectively, therefore, clause 5(3) creates an offence of strict liability.
A defence is provided in the sense that clause 5(3)(a) reverses the burden of proof. We must consider the extent to which it is acceptable that someone who has not committed a serious offence, but whose conduct is said merely to have facilitated the offence—
Kali Mountford (Colne Valley) (Lab): My problem with the debate is that the whole onus is in the wrong place. The orders are intended to prevent crime, so if someone persists in behaviour or an association that would continue to allow a crime to develop or happen, it seems odd not to want to prevent it.
Mr. Coaker: Good point.
Nick Herbert: The Minister says that that is a good point, but I am not sure if the hon. Lady understands the scope of those measures and the fact that criminal sanctions can be applied to conduct that could be inadvertent and which need not relate to a criminal act at all. These are all the discussions that we have had.
Mr. Jeremy Browne (Taunton) (LD): I might suspect that the hon. Member for Colne Valley may facilitate an offence, although she might not be able to prove to me that she does not intend to facilitate it because she might not even realise that she intends to do so. On that basis, and to prevent her from doing so, does thehon. Gentleman think that it would be reasonable for me to restrict her movement and access to premises,her working arrangements, her financial, propertyor business dealings, or any of the other matters contained within the Bill?
Nick Herbert: The hon. Gentleman puts the point very well. Where does the principle of legal certainly lie with this? How is a defendant to know, in advance, whether his activities will be judged reasonable in cases where no crime is committed and where the activities that could be caught under the Bill are not something that he or she has done, but something they have failed to do or something they have said?
Kali Mountford: Should the courts point that outto me and give me an order telling me I could not associate with people I had previously associated with, or could not behave in a way that I had previously behaved, because it would cause, or be likely to cause, a crime, I would want to desist immediately. I would not want to be associated with such situations in the future.
Nick Herbert: We are discussing the possibility that people who are innocent find themselves before the High Court. Their conduct may not necessarily be judged to the criminal standard—we had a debate that noted that there could be a sliding scale and that the test for those people could be something below the criminal standard. If that were not the case, no doubt the Government would have insisted that the criminal standard be put in the Bill.
Therefore, the person involved could be somebody who was merely associated with an issue in some loose way or someone who had failed to do something—not actually done something, but failed to do something. If that person were required by the courts, the onus of proof would be put on them to show that their conduct was reasonable. If they were then unable to show that their conduct was reasonable, an order would be placed upon them, the seriousness of which we will come to on the next clause when we discuss the onerous conditions that could be placed on that person. I, frankly, am surprised that Labour Members are not more concerned about the civil liberties implications of the orders.
Margaret Moran (Luton, South) (Lab): I give a specific example from a visit to the Child Exploitation and Online Protection Centre about a social networking site that facilitates images and abuse of children, which has been warned by CEOP and the Internet Watch Foundation that this is happening but fails to act. Will the hon. Gentleman concede that that site should be caught and will now be caught under these provisions, or is he saying, laissez-faire, that we should not be protecting our children in that way?
Nick Herbert: That is a scandalous argument.The hon. Lady has stood up and asked whether I understand that, unless I support the provisions that she does, I am apparently licensing child pornography. It is scandalous.
Margaret Moran: Will the hon. Gentleman give way?
Nick Herbert: No, I will not give way. I will answer what the hon. Lady has suggested. First, if a social networking site is displaying such images, on my understanding, it is committing criminal offences and they should be prosecuted in the normal way.
Mr. Browne: I am following the argument closely. As I understand it, the logical extension of contribution from the hon. Member for Luton, South is that the scope of the Bill should include all adult males unless they can prove that they do not have a tendency toward paedophilia. Otherwise, is not she deliberately soft pedalling on exactly the sort of offence she wants to be considered?
Nick Herbert: The example the hon. Lady has cited seems to me to be one in which prosecution is possible. I would be interested to know whether the Minister thinks it a good example of a case in which a serious crime prevention order might be applied.
Margaret Moran: Will the hon. Gentleman give way?
Nick Herbert: Hold on. The hon. Lady intervened on me but is not giving me the opportunity to reply to her points. Once I have done so, if she would like to intervene again, I will happily give way. That is the first problem with the premise of the example that she gave—it could be prosecuted. The second problem is that she suggested that in this case the organisation concerned would have been warned.
9.15 am
On the bringing of serious crime prevention orders, there is no requirement that people should have been warned in advance. I repeat that this conduct, which could fall within the provision of the making of a serious crime prevention order, could relate to something that they have failed to do. The Bill does not say that they have to have been warned by the authorities and so on. There are no safeguards built in, other than that the defendant, or the person who is potentially going to receive this order, has to showthat their conduct is reasonable. The ability of that individual to show whether their conduct was reasonable will determine whether an order will be made. Frankly, that puts a very onerous burden on people who may be far removed from the commissioning of a serious crime.
Margaret Moran: The hon. Gentleman seems to assume that there is some law that requires people with websites, for example, or internet service providers or social networking sites, to take down the material. I am afraid that he is sadly, lamentably, wrong; there is no such legislation. It is precisely for that reason that we need the measures in the Bill to ensure that those operators behave reasonably. To be honest, he ought to know better than to make assertions like that, when he is not on safe ground.
Nick Herbert: It was the hon. Lady, in my view, who was making a scandalous assertion, as she was implying that our opposition to the serious crime prevention orders was, in some way, condoning pornography, and the record will show that that was the implication that she made.
I do not know whether existing legislation would not prevent people who operate such websites from displaying images of child pornography. I would be surprised if that were the case, but if it is, my suggestion would be that, given the many Home Office Bills that have been brought before the House in this session or will be in the future, one Bill could address that specific problem and make it a criminal offence. I would be most surprised if it were not a criminal offence. It should be specifically outlawed so that we could prosecute the people concerned.
After all, we know who the owners of the internet sites are. The idea that, instead, we have to use some kind of quasi-criminal procedure, draws attention precisely to the problem and the danger that the orders are going to be used inappropriately as potential alternatives to prosecution, rather than actually either prosecuting existing crimes or, if necessary, creating criminal offences to prevent harm. The hon. Lady has given an example that is helpful to us in expressing our concerns about the way the serious crime prevention orders may operate.
Mr. Coaker: With respect to the hon. Gentleman, I think that he is finding this particular aspect difficult. Let me give him another example, since my hon. Friend the Member for Luton, South has already provided one. I used the example previously of someone who owns a series of lodging houses, or hotels, or bed and breakfasts, which are being used for the purposes of trafficking women, for example. The situation is found out by law enforcement officers. They go to tell the hotel owner, who might live 200 miles away, and he says, “Nothing to do with me. I am a hotel owner, all I am doing is trying to make some money from my hotels.” What would the hon. Member for Arundel and South Downs say with regard to that person? Would that not be an appropriate person for a serious crime prevention order?
Nick Herbert: Does the Minister not think that that person might be committing a crime? If he thinks that they are not engaged with the commissioning of those offences of trafficking in some associated manner, I would say that it was fairly clear that they were, that they should be investigated, and that the case should be brought before the courts. I do not see what the problem would be in pursuing such a case.
Mr. Hogg: Is not this the answer to the question: if the person who was allowing the premises to be used had no knowledge of the use to which the premises were being put, they should not be caught by the order? If, on the other hand, they did have knowledge of what their premises were being used for, they should be caught by the order. That is a good argument for including the words “knowingly” and “intentionally” in the Bill.
Nick Herbert: I agree with my right hon. and learned Friend. He has drawn attention to the effect of the provisions, which is to create strict liability in the absence of mens rea. I return to my original response to the Minister. In the example he gave, just as in the example given by the hon. Member for Luton, South, it would be possible to prove a criminal association if that person was facilitating trafficking. The Minister cannot deny that, and it would be infinitely preferable for that person to be brought before the court, punished and dealt with in the proper manner.
If that process were not possible then the suggestion of my right hon. and learned Friend should still apply. If Government Members are seriously saying that an order should be placed on an individual even if they were unaware of how their premises were being used, that would be an abuse of the operation of the serious crime prevention order, which is exactly what the concern is.
Mr. Coaker: The whole purpose of serious crime prevention orders is to prevent crime happening in the future. If somebody is facilitating crime and refuses to co-operate with law enforcement when it is brought to their attention that their premises are being used for trafficking—even if that is 100 miles away in lodging houses—and that person shrugs their shoulders, it may be appropriate for the law enforcement to go to the applicant authority to take that person to the High Court and make them the subject of a serious crime prevention order, in order to stop that criminality.
Nick Herbert: In that particular case, we should look at the ability of the criminal law to deal with people who are allowing their premises to be used for the purposes of trafficking, and what association they have with the commissioning of a criminal offence. It is possible that the existing criminal law could deal with that, but, if there is a lacuna, and it appears that the criminal law is permitting people to knowingly, or even recklessly, use their premises without regard to the fact that they are being used for trafficking, why has the Minister not introduced measures to deal with that? We would, of course, support such measures because we have been at the forefront of arguing for tighter measures to deal with human trafficking.
Instead, he wants to introduce this catch-all, sweeping provision, which would allow onerous restrictions to be placed on people who may be only loosely, if at all, associated with serious criminals. They may find themselves unable to show, because the burden of proof is put on them, that things that they have failed to do were not reasonable. That is not the right approach for these kinds of serious offences, whether of child pornography or human trafficking. If the hon. Members opposite wish to produce other examples of conduct that concern them, I would bet that in every case we could either say that it should be prosecuted, or, if there is a lacuna, that this House should look at closing the legislation.
This morning’s debate has been helpful in getting to a further understanding of exactly how the orders will be used as an alternative to prosecution. That is one of the principle objections to them. The Minister has not taken sufficiently seriously the fact that an onerous burden will be placed on people who have not committed an offence, who are only facilitators and do not even necessarily know that the serious crime has been taking place, on the basis that they have failed to do something. Our objection is that the measure goes too far, given the severity of the conditions that can be placed on such people. For that reason, I support my right hon. and learned Friend’s amendment.
Mr. Browne: I am grateful to you, Mr. Bercow, for calling me to speak in this extremely important part of our deliberations. I say that it is extremely important because I fear that many—perhaps not all, we might test that with a vote—Government Members simply have not stopped to think through properly the civil liberties implications of the legislation.
Mr. Coaker: I take the point about civil liberties, but we should also consider the civil liberties of the people who experience harm through the actions of some of the people to whom we want the orders to be given.
Mr. Browne: I understand completely the Minister’s point. In his earlier intervention on the Conservative spokesman, the hon. Member for Arundel and South Downs, he said that the purpose of this part of the legislation was to prevent crime that might happen in the future. Hon. Members in this room might or might not do all kinds of things in the future. I intervened earlier to comment on the previous intervention ofthe hon. Member for Luton, South. She and others appeared to think that my point was entirely spurious, but it was nothing of the sort. If the Government really believe that it is the role of the state to restrict people’s freedom on the basis that they might do something wrong in the future, why not take that belief to its logical conclusion? Why are they exposing the population to the risk of all kinds of crimes that are not covered in the legislation?
Yesterday, I saw the hon. Member for Colne Valley associating with the newest member of the Labour party during Prime Minister’s questions. She might have been completely unwitting about whether he has committed criminal offences. Under the Bill, having associated with that person, the burden of proof would be on her.
The Chairman: Order. I do not think that we will have any further dilations on the subject of the hon. Member for Grantham and Stamford (Mr. Davies), which manifestly falls outwith the terms of the consideration of the latest set of amendments.
Nick Herbert: Before the hon. Member for Taunton moves on, I refer him to the Minister’s intervention. Does he agree that that defence of the measures, which the Minister has made before and which Ministers frequently make in relation to this kind of criminal legislation, such as control orders, 28 day detention and so on, is so broad that it could license any extension of the criminal law? To say, “When considering civil liberties, we must consider the civil liberties of victims”, is to make a sweeping argument that does not address the proportionality of the measures, but that seeks to justify the measures simply on the basis that victims are created and we ought to think about them.
The Chairman: Order. I think that we get the gistof it.
Mr. Browne: I take the hon. Gentleman’s point. I happen not to believe that we should imprison everybody whom we might suspect of having the potential to commit a crime at some point in the future. It would be extremely expensive, but I suspect that the effect of doing so would be to reduce crime in the future. Of course there is a trade off. There has to be some sense that the individual citizen is innocent until proven guilty, otherwise the state can make all kinds of sweeping assertions about a person’s intentions at some point in the future, and that person will be in no position to prove whether they intend to do as the state asserts.
The Minister made the point about the boarding house. If an owner or manager facilitates a criminal act, he should be prosecuted for that. For all I know, the Minister owns a boarding house in another part of the country and might be completely unwitting about what is going on in there. If I were to restrict his liberties for something that he knows nothing about, but might seek to use in a criminal way in the future, that would be an extremely weak protection of his liberties.
The point seems so obvious to me that I do not understand why it is so complicated for everybody to grasp. I am not a lawyer, but the convention is that if an individual commits a criminal offence, that person goes to court and is prosecuted. The jury hears the evidence and makes a decision about the guilt of that person. If they are found guilty beyond all reasonable doubt, they go to prison or face some other sanction. I never knew that that process could be turned on its head, and that an assumption would be made that a person will commit a crime in future unless they can prove that they do not intend to do so. That is extremely difficult to prove.
9.30 am
What is more, a court does not have to be satisfied beyond all reasonable doubt that a person may in the future know somebody who may intend to commit a crime; it need only be satisfied that that is a possibility. I would be happy to take interventions from members of the Committee who think that that is a reasonable basis on which to proceed, but they would first have to guarantee that at no point in the future will they know anybody who may be in a position to commit a crime. To be associated with such a person would mean that we may end up voting to restrict our own liberties, as well as every other citizen, should I press the matter to a Division.
Mr. Coaker: May I ask the hon. Gentleman the question I asked the right hon. and learned Member for Sleaford and North Hykeham? If what he has said is correct, what would he say to the House of Lords on civil orders? The Government expect ASBOs to be used as a reference point for serious crime prevention orders, and we think the same on the issue as the House of Lords. The House of Lords judgment in McCann said that the question of whether a person had acted antisocially was an objective inquiry and no mens rea need be proved with reference to section 1(1)(a) of the Crime and Disorder Act 1998. To make it clear, is the hon. Gentleman saying that the Lords’ judgment is wrong?
Mr. Browne: The point is that the difficulty with gangster ASBOs, as Government spin doctors call them, is that the range of sanctions, which we will come to discuss, is equivalent to the ASBOs that he mentioned. I do not think that it is.
Mr. Hogg: The answer to Minister’s question is that the House of Lords was interpreting the law, not expressing a view as to whether it should be a strict liability. It was merely saying that, as a result of the language of the legislation, there is strict liability.
Mr. Browne: I was hoping to finish my speech a while ago, but I am grateful for that insight. The Minister will have taken that point on board. The available sanctions are different in those cases. We will talk about the sanctions that are likely to be put in place when we discuss clause 6. I shall not make my speech on the sanctions now, but they are extremely serious. In terms of curtailing liberties, they stop just short of imprisonment. If the state intends to take such action, it must do so on more substantial grounds than the ones that we are discussing.
Mr. Coaker: I apologise to the hon. Gentleman for intervening again and I am grateful to him for giving way, but he said that the available sanctions stop short of imprisonment. How can he say that a High Court, which is a public authority subject to the Human Rights Act 1998, would actually impose any such sanctions? Simply put, the court would not be able to do so because it would have to have regard to human rights legislation. This is an emotive subject for the hon. Gentleman, but what he asserted is not the case—a court would not take such action.
Mr. Browne: Perhaps the Minister might prefer me to discuss these comments in greater detail when we come to clause 6. Briefly, clause 6(3)(a) mentions a restriction on
“an individual’s financial, property or business dealings or holdings”.
The Chairman: Order. The hon. Gentleman cannot refer to a subsequent clause and he might be well advised to follow his own initial counsel in terms of the scope of his present remarks.
Mr. Browne: I should have stuck to my initial instincts.
Mr. Hogg: Is not the answer to the Minister that the control orders, which the Government have introduced and which the courts sometimes approve, have the effect of confining people in their own houses, andthat is a form of imprisonment notwithstanding the European convention on human rights?
Mr. Browne: That is another observation about clause 6 with which I agree, and look forward to debating in due course.
Mr. Blunt: I think that we have had a particularly interesting debate. I want to congratulate Labour Members for doubling the number of Back Benchers who have spoken on the Bill. There were no set-piece speeches on Second Reading, although there were some interventions from the Parliamentary Secretary, Cabinet Office, the hon. Member for Wolverhampton, South-East (Mr. McFadden). Selection, therefore, must have been difficult for the Government.
However, there are important issues here about the context in which the amendments are being put forward; what we are doing to our assumptions about society; and co-operation by the public with the authorities that are sitting there with the powers that are being sought under this legislation. I hope that Committee members will reflect on the powers that we are seeking to take and on the different assumptions that exist on both sides of the Committee. Will Labour Members reflect on what is happening with the assumptions that underlie this legislation?
Earlier, the Minister gave us an example of a hotel or property owner whose premises were being used for trafficking. If the owner had brought the matter to the attention of the police, one would expect that most citizens would wish to co-operate with the police to ensure that that illegal activity did not continue on their premises.
There must be a limited number of occasions on which people turn round to the police and say, “Up yours, inspector. You can get on with it and doit yourself.” If there is no co-operation in such circumstances, that would leave the police to draw all sorts of conclusions about the nature of that individual and the amount of investigation that should then take place.
However, the Government’s answer to the perceived problem is to take a whole reef more powers to implement these orders so that the High Court can levy an order on those individuals who do not see the police as their people and refuse to co-operate. They have done it with terrorism prevention orders, control orders and, at the bottom end of the scale, ASBOs. We are now filling in the gap in the middle with serious crime prevention orders. There is a profound problem here about what will happen to the nature of the relationship between the state, the police and its agents and the rest of society.
The rest of society sees the state taking all those powers to itself—
The Chairman: Order. These observations are very wide of the set of amendments that are currently before the Committee. I know that the hon. Gentleman, who is an experienced parliamentarian, will now wish to refocus his remarks on the set of amendments with which we are dealing.
Mr. Blunt: Indeed, Mr. Bercow. However, I only intend to produce these arguments once in our proceedings. They are in the context of these amendments in which my right hon. and learned Friend the Member for Sleaford and North Hykeham is seeking to remove from the Bill the wording thatsays the responsibility then falls on the respondentto explain his circumstances. Therefore, the general arguments apply to that specific wording. I hope that you will bear with me, Mr. Bercow. My general principles apply here and I think that the arguments should be made once during the course of the proceedings.
It is the duties that are placed on the respondent that my right hon. and learned Friend is addressing. The principal issue at stake is that the more powers are taken by the state, the less the individual citizen will feel the need and responsibility to co-operate with agents of the state. We have seen that happen in all sorts of areas. We perceive a problem; then we pass legislation and the state takes powers to deal with it. People then say that such matters are no longer their responsibility but ours, and that if we want to do something about it, we have to go to the court for an order. The amendments tabled by my right hon. and learned Friend would improve the position, but I accept that my arguments apply more widely to all the powers. I hope that members of the Committee will reflect on what such orders and powers will do to the nature of our society.
Mr. Coaker: Good morning, Mr. Bercow. As this is my first formal contribution to the Committee this morning, I wish to welcome you to your second sitting of the Committee. I also welcome all members of the Committee to our proceedings, the start of which seems a long time ago, although we are now a bit more awake than we were at 9 o’clock this morning.
We are having an important discussion. In response to what the hon. Member for Taunton said, we are all concerned about the civil liberties of citizens. We were arguing—and well, I thought—that, of course, all law impacts on the civil liberties of others. We must therefore ensure that a correct balance is struck. We believe that, through the use of the civil and criminal courts, we can reduce the level of harm in society. By impacting on serious criminals by the use of prevention orders, we shall reduce the level of harm. It may impact on the liberty of the particular individual who is made the subject of the serious crime prevention order, but for the purposes of preventing harm.
If we prevent harm in the future, the civil liberties of others in our community will be enhanced. I cannot believe that the hon. Gentleman or others do not learn from their surgeries that people are aware of the need for a balance in civil liberties, because I and my hon. Friends experience it all the time. That is of the essence. There may be differences between us. I respect people’s views, but we believe that a proportionate response that impacts on the serious criminal will prevent harm in the future. If the response was not reasonable and proportionate, the High Court would not allow the serious crime prevention order to be made.
Mr. Hogg: The hon. Gentleman frequently uses the phrase “reasonable and proportionate”. That language does not appear in the Bill, although it did in my amendments. If he were so keen for those criteria to be adopted, why on earth did he not accept my amendments?
Mr. Coaker: The right hon. and learned Gentleman has much experience of, I presume, the civil courts as well as the criminal courts. I have limited experience, but I do know—as do all members of the Committee—that the High Court is bound as a public authority to comply with the terms of the Human Rights Act. It cannot act in a way that is not reasonable. It cannot act in a way that is not proportionate. That is implicit in all its actions. High Court judges throughout the country know that and will apply the law appropriately.
Mr. Browne: On a genuine point of clarification—if a future Government were to repeal the Human Rights Act, would the Minister still feel secure in recommending the proposals that we are discussing?
9.45 am
Mr. Coaker: If we project something like that into the future, who can say what will be appropriate? In answer to the right hon. and learned Gentleman, who raised a fair point, we all want the courts to impose the orders—to implement the legislation—reasonably and proportionately. The High Court will have to do so because it has to comply with the Human Rights Act; being reasonable and proportionate will therefore be the court’s byword.
Kali Mountford: My hon. Friend is right; my constituents frequently say that they want to see a balance in civil liberties. However, they also say that the balance is currently wrong. They feel that they are not sufficiently protected from criminal activity. I want to see that protection put in place through the orders.
Mr. Coaker: I think that my hon. Friend is right. Notwithstanding the sincerity of the views being expressed in our debates, people are continually asking whether we have the balance right. Through the Bill, we are trying to ensure a better balance, and we believe that the amendments would make it more difficult. I agree entirely with my hon. Friend.
A number of hon. Members have made the point, especially in our debate on amendment No. 87, that we need to keep in mind the civil liberties of the victims as well as those of the perpetrator. We need to understand whether the attack on those liberties—their diminution—is necessary.
It is important to say that most of the orders that will come about as a consequence of this legislation will be the result of criminal conviction; nor do we believe that a large number of orders will be made through facilitation. It was estimated in the other place that about 30 such orders would be made per year, but we do not know what proportion of them would be made through facilitation other than in criminal convictions. If I have further information, I will let the Committee know. However, we expect the vast majority of orders to be associated with criminal convictions. That should offer some reassurance.
It will be difficult to obtain an order on the basis of facilitation, because it will have to be proved virtually to the criminal standard, but we believe it to be an important provision. The fact that the vast majority of orders will be based on convictions proves their worth. We are trying to prevent future crime.
The McCann judgment is extremely important. I am not a lawyer, and the right hon. and learned Member for Sleaford and North Hykeham may correct me if I am wrong, but I—and, I am sure, all hon. Members—frequently hear barristers and solicitors citing House of Lords judgments in support of their findings. The House of Lords is the most senior court in the land. Its judgments and what is said about the use or the interpretation of the law are important.
Mr. Hogg: I make a point that I made earlier tothe hon. Member for Taunton. In the McCann case, the House of Lords was not expressing a view as to the merits of strict liability but merely saying that the ASBOs were an example of strict liability. It was interpreting the language of the legislation, saying that it created a strict liability, not expressing a view onits merits.
Mr. Coaker: As the right hon. and learned Gentleman said, it was interpreting the law.
Mr. Hogg: And we made the law.
Mr. Coaker: For the benefit of the Committee, I repeat what the right hon. and learned Gentleman said: the House of Lords was interpreting the law. The point is that it concluded that the orders are civil; and one factor for believing that they are civil was the absence of a mens rea element. I believe that that conclusion is applicable to the serious crime prevention order.
Nick Herbert: I am not a lawyer either; no doubt, therefore, the Minister and I will struggle together.
I would like to ask whether there is a difference between the drafting of serious crime prevention orders and the drafting of ASBOs; the Minister referred to the McCann judgment, as it applies to ASBOs. I ask that question because section 1(1)(a) of the Crime and Disorder Act 1998 says of ASBOs that a person must have acted “in an anti-social manner”. However, the notion of serious crime prevention orders rests—
The Chairman: Order. First of all, with the greatest of respect to the hon. Gentleman—I am sorry to have to interrupt him—his intervention is becoming rather long. I will allow him to complete it very briefly. Secondly, may I just make the point to the Committee that we are now straying into what is effectively a clause stand part debate, which will have implications for my judgment when we reach the question of whether the clause should stand part?
Nick Herbert: Thank you, Mr. Bercow. I was seeking to ask the Minister a question directly about a defence that he was raising as to why these amendments were not necessary to this clause; I shall come to that question now. Is it not the case that, whereas ASBOs are made if a person has acted “in an antisocial manner”, serious crime prevention orders can be made if somebody is involved in serious crime or facilitates it? And does that not mean that the serious crime prevention orders are broader in their nature than ASBOs, which should affect our decision as to the necessary mens rea?
Mr. Coaker: The hon. Gentleman will know that there are two tests in clause 1 that outline what must be demonstrated in the High Court for somebody to be made the subject of a serious crime prevention order. There are two limbs to clause 1(1): paragraph (a), the involvement in serious crime; and paragraph (b), whether the order will prevent future crime. I was referring to the McCann judgment, which said that ASBOs were civil orders, confirming that fact and the fact that one of the reasons that they are civil orders is that no mens rea needs to be proved. We are saying that, with respect to serious crime prevention orders, we think that the McCann judgment will be taken into account.
Nick Herbert: I should be grateful if the Minister would answer my question. In rejecting these amendments, it seems that he is relying on the McCann judgment as it applies to ASBOs. I have asked him a simple question; are ASBOs the same in their nature as serious crime prevention orders, or not?
Mr. Coaker: As the hon. Gentleman knows, antisocial behaviour need not necessarily amount to criminal behaviour; the test in a serious crime prevention order is similarly structured, but aimed at different problems. ASBOs are aimed at antisocial behaviour; the other is aimed at serious criminals, to prevent serious crime. The McCann judgment is applicable to serious crime prevention orders, as it is applicable to ASBOs.
As I said, the vast majority of serious crime prevention orders will be made upon criminal conviction, precisely because it will be difficult to prove facilitation. I am afraid that I must ask the Committee to resist these amendments. They go to the mental state of the potential subject of an order at the time that he facilitated or acted in a way that was likely to facilitate serious crime.
We have already discussed the issues related tothis matter during my introduction and the other comments that the hon. Member for Taunton has made, so I do not propose to repeat all the points that I have made. This area was also debated at some length in another place. That debate was informed by the briefing meetings that Baroness Scotland organised for colleagues with Sir Stephen Lander, the head of the Serious Organised Crime Agency.
Would someone please intervene while I find the right speaking notes? Thank you very much; that was a good intervention. [ Laughter . ] I am more than willing to arrange similar meetings with Sir Stephen for colleagues from this House.
At present, no mental element is included in the court’s consideration of whether a person has facilitated a serious crime, or has acted in a way that is likely to facilitate a serious crime. The overarching context for this consideration is set out in the test in clause 1 of the Bill. In deciding whether to impose an order, including deciding whether the proposed subject has been involved in serious crime, the courts will act only in a way that is reasonable and proportionate.
Clause 1(3) also expressly sets out the terms of the order that must be made for the purpose of preventing future involvement in serious crime. It is possible that there will be instances where the court considers that it is reasonable and proportionate to put in place an order that will prevent the harm caused by serious crime, but where it is virtually impossible to prove a particular mental state.
The purpose of a serious crime prevention orderis to prevent the harm caused by a person’s future actions; they are not intended to punish a person’s past actions. If a person’s past actions cause harm, we should equip law enforcement to put a stop to those actions, notwithstanding that the person may not have intended the harm their actions cause. The example of the lodging-house owner would be especially true in that respect.
If amendment No. 6 were to be made, depending on the circumstances, the lodging-house owner might successfully argue that he did not intend his houses to be used for people trafficking or did not know that they were being used in that way and so he should not be given an order. Amendments Nos. 88 to 93 would have a similar effect but they would ensure that the court must have regard to a person’s intentions or other aspects of his mental state.
Nick Herbert: The Minister sought to rely earlieron the courts applying a reasonableness test in their attitude to the making of serious crime prevention orders. Is he seriously saying in the example he has just given that he believes that a court would allow such a person to get away with that defence?
Mr. Coaker: I am just saying that it would be a matter for the courts to decide what was reasonable.We have been through the argument on facilitation a number of times; when somebody is told by law enforcement that their actions are causing harm and that person then refuses, and almost with a shrug of their shoulders, says, “Well, it’s nothing to do with me. My intention isn’t that my house should be used for that. I am just trying to make money,” it is perfectly reasonable in those circumstances for law enforcement to go to the applicant authority and for an order to be placed before the court. It is then a matter for the respondent—the person on whom the applicant authority is trying to impose an order—to prove to the court that their actions were reasonable, and if they were, they will not become the subject of a serious crime prevention order.
We should also recognise that when the respondentis in court trying to prove his reasonableness, the standard of proof in that particular instance would be the balance of probability. In that situation, what a lodging-house owner whose houses or hotels are being used for trafficking would have to demonstrate is that in response to a request from law enforcement, not doing anything about it, or simply shrugging his shoulders, was reasonable. If he can show that to the satisfaction of the High Court, he will not become the subject of a serious crime prevention order. That is perfectly reasonable; it reflects the points made by my hon. Friends.
The vast majority of people in this country would believe that if someone is told or asked by law enforcement to understand what is happening in their hotels, it is perfectly reasonable to expect them to do something about it. If they do nothing about it, in order to prevent harm in the future, the serious crime prevention order ought to be available to the applicant authorities.
10 am
Nick Herbert: I understand the Minister’s argument and his concern about this type of behaviour but—assuming he agrees that prosecution for an offence would be preferable to making a serious crime prevention order, in all cases but certainly in this case—why would serial failure to comply with a request from the law enforcement agencies not be good evidence of complicity in a crime?
The Chairman: Order. For the benefit of the Minister and that of all the Committee, I understand the intensity of feeling on the particular point—I emphasise the singular—that has been preoccupying the Committee for some minutes now. However, as Chair, I have to judge whether the matters are new or simply a repetition of what has already been said. I now feel that a particular point has been dwelt upon intensely, at considerable length, and does not require to be repeated further. If the Minister feels that he now wishes to move on to any additional points that he needs to make in response to the amendments tabled by the right hon. and learned Member for Sleaford and North Hykeham, the Committee will await that with eager anticipation.
Mr. Coaker: Brilliant. Your brilliant chairmanship, Mr. Bercow, never ceases to astonish me. With that gentle admonishment, let me conclude. Amendments Nos. 87 and 94 delete subsections (2) and (3) and appear to be consequential on the removal of the concept of facilitation from the Bill. As already discussed, we believe that basing an order on the facilitation of serious crime is an important and valuable feature of the Bill, because it will allow us to tackle those whose actions provide the infrastructure and support for serious criminal networks. For those reasons, I would ask the Committee to reject the amendments, if they are not withdrawn.
Mr. Hogg: Heeding what you say, Mr. Bercow, I would none the less like to respond briefly. There is one general point relating to McCann and three specific points that I would like to address.
On the narrow point of strict liability, I repeat a basic fact: the McCann judgment did not involve the House of Lords in saying what should be. In the judgment, the House of Lords merely said that, because Parliament had framed the legislation in a particular way, it was a case of strict liability. The House of Lords was not expressing quality—a view as to whether the merits lay in favour of strict liability—but was merely saying that that is what the legislation involved. That is no more than what we are saying. The Bill is a Bill that involves strict liability. We know that. The Minister cannot pray in aid the House of Lords to say that it should be strict liability—the House of Lords was not addressing that question. I will move on.
The Minister basically advanced three arguments: first, the protection of the public; secondly, in any event, somebody who continues an activity knowingly should be caught by the order-making powers; and, lastly, in any event, the convention on human rights as incorporated into the Human Rights Act 1998 would be a proper defence. Those are the three arguments, and I would like to respond briefly.
As for the protection of the public, I am an old-fashioned libertarian and do not pretend to be anything else. I subscribe to the view that it is betterby far that the guilty should go free than that the innocent should be caught. That is a proposition I have subscribed to all my life when practising at the Bar. Itis also the proposition which underpins the British legal system. It is why cases have to be proved beyond their reasonable doubt and not on the balance of probabilities and it is true that if one allows people who probably are guilty to go free—which is what I want to see—then in some cases they will go and commit further offences down the track. To that extent the public are put at risk by our criminal standard of proof. But because we believe fundamentally that the innocent should not be convicted, we have set this high threshold. I happen to believe that that standard applies in cases such as this.
I make this further point, as one who has used Executive power and who has practised in the courts off and on for most of my life: all power is abused. All power is abused, whether it is by senior or junior people. One should never ever give power to the Executive, unless it is absolutely essential. Where power is given to the Executive or to the officer of the state, one must set that power about with constraints and provisions designed to safeguard the citizens, because power will be abused. We are not doing that in this Bill; we are giving unconstrained—or relatively unconstrained—powers. I am against that in principle, about as passionately as I could ever be about matters in politics. I am a libertarian. I stand for the individual against the state; that is my role. When I have to make a choice between the relative values of the individual and the values of the state, as a presumption, I favour the individual.
Ian Lucas (Wrexham) (Lab): As I understand it, this particular clause gives powers to the courts, not to the Executive.
Mr. Hogg: Forgive me, but what is happening here is that we are removing from the courts the ability to ask themselves the question: what is the knowledge and the intention of the person to be affected by the order? That is what I believe to be fundamentally wrong.
Ian Lucas: Is it not the case that this concerns the courts? It is an order to be made by the courts, to be considered by the courts. It is not giving power to the Executive.
May I move on from that point? I am waxing unduly powerfully on the matter. My second point is this. The Minister’s case was something like this: is it not right that an order should be made when the facilitator continues an activity after the facilitator has been warned? The Minister made that point time and time again—after the facilitator had been warned.
There are two points to be made. First, the language of the Bill does not require a warning. The facilitator can be made the subject of an order whether or not the facilitator had knowledge of the activity on which complaint has been made.
Mr. Coaker: It would be the prosecuting authorities that decided whether to go for a serious crime prevention order. Let us say that the Crown Prosecution Service decided to try to take out a serious crime prevention order against somebody in one of the examples I have just cited, and that that person had not been warned but the applicant authority still went ahead with the serious crime prevention order. Does the right hon. and learned Gentleman not agree that, if the respondent then went to the High Court, it would be perfectly reasonable for him to say that he had never been warned of what was going on and that he had never been told that his lodging-houses were being used for trafficking? Does he not agree that, in those circumstances, the High Court would say that, because he had never been warned, it would not be appropriate to make a serious crime prevention order against him?
Mr. Hogg: No, I do not come to that conclusion. One reason why I do not is because clause 5(2)(b) positively enjoins the court to ignore
“his intentions, or any other aspect of his mental state”.
The Minister’s own legislation therefore requires the court to ignore whether the person had knowledge, whether he had an intention, and what his mental state was. That is in the Bill, and that is one reason why I dislike the Bill so much. The facilitator can be caught—without knowledge and irrespective of his mental state. That is the first point.
The second point is that, if the Minister wants to confine matters to those instances in which a warning has been given, then for goodness’ sake he should incorporate appropriate language in the Bill, such as “knowingly”, or “intentionally”. The Minister seeks to rely on certain examples. However, I happen to have in front of me section 8 of the Misuse of Drugs Act 1971, which stipulates that a person commits an offence if
“being the occupier or concerned in the management of any premises, he knowingly permits or suffers any of the following activities to take place”.
There is a further point. The Minister says, “Of course we shall not act unfairly or disproportionately, because the European convention on human rights is incorporated in domestic law by the Human Rights Act.” I simply do not agree. I do not wish to be rude to him, but he is ignoring the language and architecture of that Act. There is nothing in the convention that says, in terms, that a court must not act disproportionately or unreasonably. Instead, there are article rights, which are of various kinds, such as the right to a fair trial that is contained in article 6, or the right to life and liberty. The court determines whether those rights are in some way infringed. There is no general injunction to act reasonably.
Reference has been made to the McCann case, for which incidentally—by chance, as it were—I have the headnote. Perhaps I should remind the Committee that the respondent in that case said that there was infringement of his human rights as provided for by the convention. Surprise, surprise, the House of Lords held that the convention right in article 6.2 did not apply. The reason was that the proceedings were not criminal but civil: precisely the kind of circumstance in relation to which the Minister is asserting that the convention provides safeguards—yet one in which the House of Lords held that the convention applied not at all.
I see that you are twitching, Mr. Bercow, but before you get very impatient with me I have one final point to make. Of course, the courts are an important safeguard of our rights. However, they can only really constitute such a safeguard if they apply legislation together with, to some degree, the principles of natural justice, and if they consider cases of judicial review. I supported the incorporation of the convention on human rights into domestic law for one reason. I reluctantly came to the conclusion that Parliament was no longer protecting the rights of the citizen. I concluded that the courts needed to have enhanced powers precisely because we were failing in our duty. It has a very unsatisfactory consequence in that it gives to judges the role of legislators, and I do not like that. My own belief, oneI hold very firmly, is that it is the business of Parliament—Members of Parliament, the other place—to safeguard the rights of our fellow citizens. We should not be delegating this to others. We should have the courage to incorporate the necessary safeguarding language in the Bills. It is quite wrong to say this is the business of the courts; it is our business and we are not doing it.
10.15 am
The Chairman: I assume from the observations of the right hon. and learned Gentleman that he does not intend to withdraw his amendment.
Mr. Hogg: Absolutely.
Question put, That the amendment be made:—
The Committee divided: Ayes 4, Noes 9.
Division No. 12 ]
AYES
Blunt, Mr. Crispin
Browne, Mr. Jeremy
Herbert, Nick
Hogg, rh Mr. Douglas
NOES
Campbell, Mr. Alan
Coaker, Mr. Vernon
Gwynne, Andrew
Lucas, Ian
Moran, Margaret
Mountford, Kali
Reed, Mr. Jamie
Sutcliffe, Mr. Gerry
Wright, Mr. Iain
Question accordingly negatived.
The Chairman , being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendment proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause stand part of the Bill:—
The Committee divided: Ayes 9, Noes 4.
Division No. 13 ]
AYES
Campbell, Mr. Alan
Coaker, Mr. Vernon
Gwynne, Andrew
Lucas, Ian
Moran, Margaret
Mountford, Kali
Reed, Mr. Jamie
Sutcliffe, Mr. Gerry
Wright, Mr. Iain
NOES
Blunt, Mr. Crispin
Browne, Mr. Jeremy
Herbert, Nick
Hogg, rh Mr. Douglas
Question accordingly agreed to.
Clause 5 ordered to stand part of the Bill.
 
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