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Session 2006 - 07 Publications on the internet General Committee Debates Serious Crime Bill [Lords] |
Serious Crime Bill [Lords] |
The Committee consisted of the following Members:Emily
Commander, Committee
Clerk
†
attended the Committee
Public Bill CommitteeThursday 28 June 2007(Afternoon)[Mr. Joe Benton in the Chair]Serious Crime Bill [Lords]Clause 6Type
of provision that may be made by
orders
Amendment
proposed [this day]: No. 96, in clause 6, page 5, leave out lines
22 to 24 and insert—
‘(1)
The Court may make orders specified in subsections (3), (4) and (5)
below.’.—[Mr.
Hogg.]
2
pm
Question
again proposed, That the amendment be
made.
The
Chairman:
I remind the Committee that with this we will
discuss the following amendments: No. 97, in
clause 6, page 5, line 29, leave
out ‘Examples
of’.
No. 98, in
clause 6, page 5, line 31, after
‘orders’, insert
‘may’.
No.
99, in
clause 6, page 5, line 40, leave
out ‘Examples
of’.
No. 100,
in
clause 6, page 5, line 42, after
‘orders’, insert
‘may’.
No.
101, in
clause 6, page 6, line 4, leave
out ‘Examples
of’.
No. 102,
in
clause 6, page 6, line 5, after
‘orders’, insert
‘may’.
No.
103, in
clause 6, page 6, line 25, leave
out from ‘orders’ to ‘prohibitions’ in line
27 and insert ‘may not
include’.
Nick
Herbert (Arundel and South Downs) (Con): At the end of the
previous sitting, I was discussing the amendments to clause 6 that are
in the name of my right hon. and learned Friend the Member for Sleaford
and North Hykeham. He expressed concern about the
ambit of the prohibitions, restrictions and
requirements that that the Bill will allow under serious crime
prevention orders.
His amendments seek to address
his specific concern that clause 6(3) does not set out the nature of
such prohibitions, but provides only a non-exhaustive listof
examples of prohibitions that can be made. The listis similar,
although not identical, to the list of prohibitions and restrictions
related to control orders, to which serious crime prevention orders are
directly analogous. There are some significant differences,
andI would like to ask the Minister about at least
twoof those. It is important that we understand how
comprehensive the prohibitions and restrictions might be before we
permit any of them to go forward in an open-ended manner.
Section 1 of the Prevention of
Terrorism Act 2005, which is entitled, “Power to make control
orders”, contains some provisions similar to those in clause
6(3) of the Bill, as well as additional specific obligations that can
be placed on an individual. They include requirements on an individual
to
“allow himself to be
photographed”
and
to
“co-operate with
specified arrangements for enabling his movements, communications or
other activities to be monitored by electronic or other
means”,
which permits
tagging. There is also a requirement on the individual to
“surrender his
passport”.
Those
three requirements of the 2005 Act, whichall relate to control
orders, could be made underclause 6(3), because the list that
it contains non-exhaustive. Unless those provisions were specifically
ruled out, which I do not believe they have been, it will be possible
to enforce not only the significant restrictions in clause 6(3), which
are set out only as examples, but the additional ones specified under
the control order legislation. We need to focus on how restrictive
those conditions could be. Subsection (6) says that the restrictions
may relate to private dwellings.
The Government clearly intend
the measures to be very wide indeed. In the White Paper, “New
Powers Against Organised and Financial Crime”, which preceded
the Bill, the Government discussed the kind of conditions that could be
included in serious crime prevention orders under the proposed
legislation. They
conceded:
“For
a civil order not to be considered criminal, and thus attract the
additional protections of article 6 ECHR, the conditions attached must
be designed to prevent harm, not be
punitive.”
My argument is
that many of the conditions in the clause add up to potentially
punitive measures.
As
the Government then conceded, there is a difference in the way in which
antisocial behaviour orders operate and how control orders and serious
crime prevention orders work. The comparison has been made frequently.
ASBO conditions are prohibitive and are not used to require certain
courses of conduct. The paper noted that specifically and that, in
relation to terrorist control orders, Parliament had chosen to specify
in broad terms the conditions that could be imposed under the
Prevention of Terrorism Act 2005 to which I have
referred.
The
conditions include requirements to “behave in certain
ways”. They are requirements to do something; they are not only
prohibitions. The paper said that that
was
“an additional power
we are keen should apply to these orders
too.”
The sweep of the
potential restrictions is immense. They will apply not only to
people’s homes; they will not just prohibit people from doing
things in the way in which the ASBO legislation works, but they will
require people to do things. Let us consider the analogous powers of
control orders. It is worth bearing in mind exactly the sort of thing
that control orders have required people to
do.
Let us consider
the 18 people who were subjected to control orders in January this year
to whom Lord Carlile’s report referred. All 18 are required to
reside at
a specific residence, 10 of whom are subject to curfews of between 12
and 14 hours a day. That is what the Government have attempted in their
restrictions of people and their movements in respect of control
orders. The legality of such measures remains to be seen. The courts
have said that restrictions are likely to be unlawful under the
convention. The case is currently subject to appeal, and I shall return
to it in a minute.
I
argue that curfewing and that sort of detention amounts not to a
preventive condition, but to punishment. However, even if we put that
aside and look at the remaining conditions that have been attached to
control orders and which could be attached equally under the provisions
in the non-exhaustive list, we can see that they are very tough. All 18
of the people subject to control orders must permit entry to their
homes to police officers and persons authorised by the Secretary of
State. Of those people, 16 have had to surrender their travel documents
and must not leave the UK. I am sure that that provision would be
permitted under clause 6(3)(f) because it has a specific requirement in
relation to an individual’s
travel.
More than half
of the people subject to control orders have to wear an electronic
monitoring tag and report each day to a monitoring company. They are
subject to a restriction on communications equipment in their
residence. They cannot maintain or use more than one bank account and
must provide statementsof that account. They must provide the
Home Office with details of their employment and one person has
restrictions on the specific type of employment in which he can
engage.
The last two
conditions are particular relevant for the potential operation of
serious crime prevention orders. Again, in their White Paper, the
Government have been absolutely clear that they wish to employ such
measures if serious crime prevention orders are to operate
successfully, and
state:
“Given
the acquisitive nature of organised crime, it is particularly important
to be clear that the court could impose particular
restrictions on the subject’s financial dealings, including for
example requiring them only to use notified financial instruments
(credit cards, bank accounts) and restrictions on the amount of cash
they are permitted to
carry.
We are also
keen to ensure the orders include a power either compulsorily to
purchase businesses or property or otherwise to require individuals to
divest ownership of certain possessions which have been used to
facilitate serious
crime.”
We are
talking about two potential scenarios under which those immensely
onerous conditions could be attached. One is the scenario to which the
Minister referred this morning, which is when people have been
convicted of serious crimes. The Bill would give the courts the power
to impose orders alongside the conviction that would prevent them from
engaging in criminal
activity.
Let us put
that on one side for a second and focus on the second category of
people who could be subjectto those incredibly onerous
conditions. Such people need not have committed any criminal offence.
We understand that. As I pointed out before lunch, there is no
necessity under this legislation for the courts to consider the
alternative of prosecution. There is that legal necessity in relation
to control orders and the Prevention of Terrorism Act. It is not
written into this legislation. The Minister assures us that these
measures
are not intended as an alternative to prosecution, but the authorities
are not required to surmount any hurdle—as they are in relation
to control orders—which requires them, in association with the
chief of police, to examine whether there is sufficient evidence to
mount a
prosecution.
Therefore,
the individuals concerned may not have committed an offence. They may
have engaged only in conduct that facilitated the offence. As we
discussed this morning, that conduct might merely have been one of
omission. The definition of serious offence, which they may be said to
have engaged in, can be made by the court. It may be something that the
individual was not even aware was an
offence.
The
Parliamentary Under-Secretary of State for the Home Department
(Mr. Vernon Coaker):
Without repeating the
debate that took place this morning, it is simply not the case that
someone could be made the subject of a serious crime prevention order
because of an omission, or because they have forgotten to do something.
If such a case were to get to court, it would fail the test of
reasonableness. The respondent could say, “Nobody told
me.” If they demonstrated that to the court, the court would
throw it out. One can make these arguments, but it is not the case that
it will
happen.
Nick
Herbert:
I said that the person in question might not have
done something, but they might have committed an offence of omission.
That is accordingto the legislation as it is drafted. The
defence of reasonableness would be one that the person in question
would have to mount. The burden of proof moves on to that
person.
Mr.
Douglas Hogg (Sleaford and North Hykeham) (Con): There may
be another point that my hon. Friend would like to make. In cases of
omissions, it is not open to the respondent to say that the omission
was reasonable. Subsection (2)(a) refers to an act, and an omission is
not an act. [Interruption.]
Nick
Herbert:
Yes, I think clause 39 specificallysays
that an act is to include an omission, and that is part of the problem
with the definition. Omissionsare included in the legislation.
Before the Minister intervened, I was making the point that in
additionto all of these circumstances under which a person
could arrive at the situation in which a serious crime prevention order
is being placed upon them, the evidence that has been assembled could
be hearsay
evidence.
Mr.
Geoffrey Cox (Torridge and West Devon) (Con): The Minister
is almost certainly right. If it were a single incident of omission, it
is highly unlikely thata judge would say that one of these
orders was proportionate. Let me propose to my hon. Friend, and perhaps
he might suggest it to the Minister, that thereis a situation
in which a bookmaker or a bureau de change had, on four or five
occasions, been proved to have accepted criminal money, not knowingly
but simply because their systems were weak and they had been negligent
in the way that they had approached it.
They might well be subject to requirements under
such an order, which could be in relation to the way that they
conducted their business in future.
Nick
Herbert:
I am grateful to my hon. Friend and I look
forward to the Minister’s response. The evidence that will have
been adduced to require this person potentially to answer for their
conduct, which could be an act of omission, could be hearsay evidence.
It is the Government’s categorical intention to allow the use of
hearsay evidence. They wish to pursue the remedy of a civil
order—giving rise to a quasi-criminal prevention order with the
sanction of a criminal offence should it be breached—precisely
so that hearsay evidence can be allowed. All of those things could
happen, but under clause 6(3) a person could still end up attached to a
set of conditions amounting to a deprivation of libertyas
serious as if that person had been convicted in a
criminal court and sentenced to a term of
imprisonment. And that is entirely setting aside the ignominy that
would be attached to that individual should an orderbe
made.
It is worth
reflecting on what Lord Carlile said about the operation of control
orders in his second report, published on 19
February:
“The
key to the obligations is proportionality. In each case they must be
proportional to the risk to national security presented by the
controllee. The minimum obligations consistent with public safety are
the only acceptable basis for control
orders.”
But we
have already faced Government arguments rejecting that test of
proportionality being built into the legislation. In this indirect
acquisition of a serious crime order, the burden lies on the defendant
to show that his conduct was reasonable. There is no test of
proportionality required of the court in the execution of the
orders.
Ian
Lucas (Wrexham) (Lab): I am listening carefully to the
hon. Gentleman, but I cannot understand why he is continually referring
to control orders in our debate on serious crime orders. One is an
executive order, in particular circumstances, and the other is the
proposal before us, which we are
debating.
Nick
Herbert:
Oh dear. I think that the hon. Gentleman has
missed the point. Let me try and explain—none of the hon.
Members was present on Second Reading, when the issues were discussed
extensively. The orders are directly analogous to control orders. The
origin is exactly the same: a determination by the Government to use a
civil procedure to effect a criminal enforcement. The process began
with ASBOs, moved to control orders, has now moved to serious crime
prevention orders and, if the previous Prime Minister’s pledge
is to be honoured, will move to violent offender orders. The principle
underlying all the orders is the same: evidence falls short of the
ability to mount a criminal conviction, so the Government seek an
alternative way of restraining the individuals. That alternative is to
use a civil procedure, with a lower evidential standard than in
criminal proceedings, but with a criminal condition attached. The new
orders lie at the boundaries between civil and criminal
legislation.
With respect to the hon.
Gentleman, it is important to understand the association that control
orders have with serious crime prevention orders. He is absolutely
right that there is a difference—examined this
morning—between the imposition of serious crime prevention
orders by the court and the application by the Secretary of State to
make a control order. However, there are also ways in which serious
crime prevention orders have a more serious effect than control orders,
one of which I have already alluded to: the control order legislation
includes the test that a prosecution should have been mounted. The
order cannot go ahead unless that test is fulfilled. That test is
absent from the legislation on serious crime prevention
orders.
2.15
pm
The
Chairman:
Order. I believe that this morning’s
debate on clause 5 discussed reasonableness,
proportionality and intent at great length. Clause 6 is about the types
of provision that can be made. There is a danger that we are going over
old ground, which I merely point out at this
stage.
Nick
Herbert:
I accept your advice, Mr. Benton, but
I was simply answering a question. I have tried to direct my remarks to
the comparisons of the specific requirements that may be made under the
control order regime as can be made under this regime of serious crime
prevention orders. It is important that we understand what kind of
restrictions could be made, how they could operate and how successful
they may be; because the terms of the amendment are that there is a
non-exhaustive list of prohibitions and restrictions which also apply
under the control order legislation.
Mr.
Coaker:
The hon. Gentleman is supportingthe
amendment, which would make an exhaustive list available to the court.
If that exhaustive list was placed in clause 6, what would happen if
the court wanted to impose a less restrictive
condition?
Nick
Herbert:
The Minister will have gatheredby now
that, since he has accepted none of our amendments to build in
safeguards to the operation of these orders, we are searching for any
way in which their impact can be safeguarded in future parts of the
legislation. That is not a surprising thing for us to do. The
legislation is currently immensely wide in its ambit—there are
no restrictions placed on it. If the Minister thinks the terms of our
amendment are unhelpful and that there is some other way in which this
could be safeguarded then I would be happyto
listen.
Mr.
Coaker:
I was just pointing out to the hon. Gentleman the
difficulty of the amendment. If the court is required to consider an
exhaustive list with no flexibility or discretion, then if it wished to
impose a lesser restriction because it was appropriate to that
individual case, it could not be done.
Nick
Herbert:
I do not accept that argument inthe
first place and it cannot be used to justify a non-exhaustive list. If
that was the case, why have a list
at all, other than to indicate the kind of measures that could be made?
Following the logic of the Minister’s argument, why not make the
legislation the same asin ASBOs, which have a test of
necessity? Under section 1 (6) of the Crime and Disorder Act 1998, the
requirement for the issuing of ASBOs says:
“The prohibitions that
may be imposed by an anti-social behaviour order are those necessary
for the purpose of protecting from further anti-social acts by the
defendant”
There is no
list—exhaustive or otherwise—of the kind of prohibitions
that may be made. We are well aware of the creativity of the courts in
the operation of ASBOs over the past two years. That may be acceptable
for ASBOs, which are much lower level remedies, but in our judgment it
would not be acceptable for these orders which can impose punitive
restrictions.
Simply
describing these measures as serious crime prevention orders does not
necessarily mean they will operate as prevention orders, because the
kinds of measures included in here are punitive. That is why it is
necessary to define much more carefully what kindof measures
could be made. The Government have already conceded that its initial
attempt in this legislation to set up the possible range of measures
was far too broad. They conceded an amendment tabled by the official
Opposition in the Lords in relation to the discretion of law
enforcement officers in this manner. But the fact that these are only
examples means that there could be almost any other similar
restrictions placed upon us. That gives rise to too much
uncertainty.
This
legislation is not specific or clear enough. The example of control
orders and a control order regime, the collapse of the various
restrictions that have been placed upon people, the testing of those
restrictionsin court, the fact that the control orders have
been breached—none of these things have given us confidence in
the potential for successful operation of these restrictions and
certainly not that the civil liberties of the people concerned will be
properly safeguarded.
Mr.
Jeremy Browne (Taunton) (LD): I welcome you to the Chair,
Mr. Benton, for this sitting. I rise in support of the
amendments tabled by the righthon. and learned Member for
Sleaford and North Hykeham. I shall first set my reasons in context,
trying not to stray too far—or indeed at all—beyond the
narrow confines of the debate.
There is a
fundamental ideological difference between people in my
party—and, by extension, Conservative Members present—and
Labour Members. I start from the assumption that everyone is born free,
and that only in the most essential circumstances should the state seek
to curtail their liberties. By contrast, I think that a lot of Labour
Members—maybe this is why we have difficulty reaching
consensus—start with the assumption that the state is
essentially a benign force, and that we must justify as individuals any
freedoms that we wish to exempt from the ambit of state authority. If
they start from that assumption, their point is
understandable—that somebody might at some point do something
that they disapprove of, and that the best bet is therefore to restrict
that individual’s liberties as soon as possible
to
ensure that the chances of their doing it are minimised. I do not take
that as my starting point. I say in a spirit of concession that if
Labour Members do not understand the fundamental attachment to liberty
that is the starting point for my political beliefs, I can see why they
would have difficulty realising why I object to the clause, and indeed
to large parts of the Bill, and why I support the
amendments.
I shall
discuss a few specific concerns. I am particularly attached to the
amendment that would make the clause more specific, because it seems
strange for legislation merely to list examples of sanctions that may
be used against the individual. On that basis, I cannot see why any
Government would ever try to frame legislation in specific, watertight
terms that the individual citizen can understand. Why bother listing
any examples at all? Why not give untrammelled power and authority to
the state through the courts to implement any measure that it sees
fit?
Individual
citizens of this country are entitled to know when they read the laws,
and when they send us here as Members of Parliament to frame those
laws, that we will make them sufficiently specific that they will know
where they stand in terms of their rights and duties as citizens of
this country. Merely to state examples that do not create that degree
of certainty must be of concern to them, and to me as a member of this
Committee.
I said
earlier—this was a point of contention with the Minister, or
possibly another Labour Member—that the measures given as
examples would restrict the liberty of the individual to a point as
close as possible, short of imprisonment, to containing it absolutely.
That point was disputed by an hon. Member—I cannot remember
which one—who appeared to imply thatthe measures were
less harsh than that. But they are extremely widely drawn.
I turn, for example, to clause
6(3)(e), an example of the
“prohibitions, restrictions or
requirements that may be imposed on
individuals”.
They
include
“the use of any
premises or item by an
individual”.
The term
“any premises” is pretty widely drawn. I do not know how
“premises” will be interpreted—whether it will
include any building, or any building that people go to sleep
in—nor “any...item” of any sort. That is just
one example.
Another
is “an individual’s working arrangements”. That is
widely drawn as well. I do not know whetherit will restrict
travel arrangements, for example—although travel is captured in
paragraph (f) as
well:
“an
individual’s travel (whether within the United Kingdom, between
the United Kingdom and other places or
otherwise).”
The whole
clause is drawn up in the most wide-ranging and unspecific terms. That
means that it is so general that it leaves the individual citizen far
from certain about what sanctions exist, if they were to
transgress.
The list I
touched upon merely consists of examples, so harsher measures may well
be put in place thanthe ones before us. Starting from the
assumption that the individual citizen is a free man or woman and that
the state must seek to curtail their liberty only in the most
exceptional circumstances, it is only reasonable
that the state must do better in describing what that curtailment will
involve than a list of widely drawn
examples.
2.30
pm
Ian
Lucas:
I had not intended to contribute to this debate,
but I am motivated to do so because of the grotesque characterisation
of the views of the Labour party and my hon. Friends that we have just
heard. I say to the hon. Gentleman that I am a great admirer of John
Stuart Mill and his essay “On Liberty” and, in
particular, his distinction between self-regarding and other-regarding
actions. I support the central thrust of the legislation because I
regard the acts that are prevented by serious crime prevention orders
as acts that amount to other-regarding actions, thus entitling the
state to intervene for the benefit of society as a
whole.
Mr.
Coaker:
Good afternoon, Mr. Benton. It is nice
to welcome you back to your second sitting of the Committee. I also
welcome all other hon. Members to the Committee this
afternoon.
I was just
looking for a particular clause—I think that it is towards the
end of the Bill. With respect to the remarks made by the hon. Member
for Taunton on the protection of civil liberties, which are relevant to
clause 78, I look forward to him voting to delete that clause, given
that the Lords, including the vast majority of Conservative and Liberal
Democrat peers, has put in what most of us would regard as a step too
far for civil liberties. Under that measure, a police constable could
close off a whole area and stop and search anyone on the mere suspicion
that a gun is in that area.
With clause 74, as with clause
6 and the amendment, there is always a balance to be struck. My hon.
Friend the Member for Wrexham made that point, and indeed, I made it
this morning. To be brief about it, because this goes to the core of
the Bill, we seek to prevent crime and to reduce harm. We do that, to a
certain extent, by curtailing an individual’s civil liberties,
following the successful application for a serious crime prevention
order in the High Court. We do that to protect the civil liberties of
the wider public and those suffering as a consequence of serious
crime.
As I have
said, the Government believe that inthe vast majority of
circumstances serious crime prevention orders will be given alongside a
criminal conviction, and we would expect criminal conviction to take
place. That is why the applicant authorities for serious crime
prevention orders are the prosecuting authorities, which will be best
placed to know whether they should be pursuing a criminal prosecution
or, following that prosecution, whether it would also be appropriate to
pursue a serious crime prevention
order.
Mr.
Hogg:
I am grateful to the hon. Gentleman for giving way.
I will put my question to him now, so that time is given for advice to
be tendered before he finishes his speech. In an intervention on my
hon. Friend the Member for Arundel and South Downs, he said that the
Government wanted a non-exhaustive list so that a court could impose a
more lenient condition than that set out in clause 6(3). Would he care
to give an example of the kind of lenient order that does not fall
within the
examples set out in clause 6(3)? I do not expect an
immediate answer because that would be unfair, but I hope that after he
has received some advice he will give us
illustrations.
Mr.
Coaker:
The answer to the right hon. and learned
Gentleman’s point is simply that we do not want to fetter the
discretion of the court. I was making the point that if there is an
exhaustive list of conditions that the High Court has to take account
of, which it can use with regard to the respondent or the subject of a
serious crime prevention order, the court has no
discretion.
My point
about things that are not part of the exhaustive list, whether they are
more or less severe penalties, is that discretion should be available
to the court. In my view, the vast majority of courts and High Court
judges prefer that type of discretion. The judiciary often says,
whether in the civil or criminal part of our system, that to deal
appropriately with individuals or cases before it, it needs flexibility
and discretion. I do not always listen to the judiciary, but that is a
perfectly reasonable point and it is what we have tried to
achieve.
I want to say
a little about control orders. I am sure that all hon. Members know
this, but it is important for the record to draw out some of the
differences between control orders and what is being proposed. I agree
with my hon. Friend the Member for Wrexham; we are discussing serious
crime prevention orders. Conjuring up images of control orders makes
for a good debating point, but these are serious crime prevention
orders and will deal with completely different types of
situations.
I will
concede to the hon. Member for Arundel and South Downs that the two are
similar in a couple of regards, but those similarities are limited.
They are both civil orders, breaching either is a criminal offence and
they are both preventative. However, serious crime prevention orders
are very different from control orders in the following respects and
this is what my hon. Friend the Member for Wrexham keeps pointing out.
Non-derogating control orders are made by the Secretary of State with
the permission of the court. There is an almost political input into
the decision. That is not the case with serious crime prevention
orders, which are a function of the judiciary and the court, not of any
Minister. No Minister has any input into whether a serious crime
prevention order is made. It is purely a judicial decision, and that is
absolutely
right.
Mr.
Coaker:
I will just make a couple more points. Control
orders have closed hearings, unlike serious crime prevention orders;
they have special advocates, unlike serious crime prevention orders;
they are aimed at terrorism, unlike serious crime prevention orders;
they can be made without notice to the subjects, unlike serious crime
prevention orders; and, intercept evidence can be used in closed
control order hearings, unlike with serious crime prevention orders. I
know that you will rule me out of order if I go down this route too
far, Mr. Benton, but I think it important to put on the
record the real differences between control orders and serious crime
prevention orders and to support the point that my hon. Friend the
Member for Wrexham has made.
Mr.
Hogg:
Of course, the Minister is quite right in saying
that a serious crime prevention order will be made by the court, but I
am sure that he would be the first to concede that the terms of the
order being sought will, at least initially, be outlined by the
enforcement agency, whether it be the Director of Public Prosecutions
or the Director of Revenue and Customs Prosecutions. Therefore, the
Executive will be proposing the terms of the order to the court,
albeit—I am happy to acknowledge—that the ultimate shape
of the order is a matter for the
court.
Mr.
Coaker:
Absolutely. The final decision will be a matter
for the court. I am making it very clear to the Committee that, unlike
with control orders, where the Secretary of State has an
involvement—in other words, a political person—the
issuing of serious crime prevention orders is a judicial process, which
determines whether or not somebody should be the subject of an order.
That is one of the most fundamental differences that we can draw
attention
to.
Kali
Mountford (Colne Valley) (Lab): Is my hon. Friend as
concerned as I am that analogies were being drawn with ASBOs? The real
difference with ASBOs is the behaviour involved. With ASBOs, of course,
the behaviour that we are trying to prevent is antisocial behaviour; in
this instance, the behaviour that we are trying to prevent is serious
crime. That distinction should also be
drawn.
Mr.
Coaker:
Again, my hon. Friend makes a good point, one that
reinforces continually the point that I need to make, which is that
this is a civil process and this is a civil order, and it is not a
part, in any way, of the criminal process.
Nick
Herbert:
The Minister correctly draws attention to the
specific differences between control ordersand the proposed
serious crime prevention orders. However, would he not concede, in all
fairness, that in the Government’s own White Paper, “New
Powers Against Organised and Financial Crime”, a clear link is
traced between the development of these civil orders, both ASBOs and
subsequent civil orders, and that analogies are drawn with the control
orders? Therefore, to suggest that it is not appropriate to discuss
thetwo alongside each other is, perhaps, rather unfair to our
party.
Mr.
Coaker:
May I correct something that I have meant to
correct for a long time? The hon. Gentleman gives me a good chance to
do so. That paper was a Green Paper; I just put that point on the
record, as a fundamental point of this debate. It was a Green Paper and
we moved straight from it to the Bill.
I would like to point out to
the Committee, and indeed to the hon. Gentleman, that I felt that in
his remarks he was trying to draw a picture that suggested that serious
crime prevention orders were, given the nature of the restrictions that
could be placed on an individual, very similar to control orders. For
the benefit of the Committee, I was trying to draw out the differences
between serious crime prevention orders and control
orders.
I would ask
the Committee to resist these amendments, because they go completely
against the point of these orders, which is to encourage an innovative
and effective approach to preventing the
harm caused by serious crime. Amendments Nos. 96 to 102 would have the
effect of making the examples of potential conditions for orders that
are set down in clause 6 an exhaustive list. Potentially, that would
have the perverse effect, as I have already said, of stopping the
courts from imposing a less onerous order on the subject than the
examples set out in clause 6, even ifit would have the
potential to reduce harm more effectively.
We all know how innovative and
adaptable serious criminals can be; we need to provide law enforcement
with the means to be just as adaptable in response. Clause 6 provides
guidance to the courts, by setting out the types of conditions that we
envisage might be used. It is unlikely that the courts will go beyond
the conditions set out in clause 6, but it is vital that we do not
hamper their discretion to do what is most effective in the
circumstances of the cases before them.
Mr.
Cox:
Does the Minister envisage that the powers available
to the judge under clause 6(3) would include the imposition on an
individual of some form of personal restraint, for example an
electronic tag?
Mr.
Coaker:
We do not envisage that electronic tagging should
be allowed, no; if we had done so, we would have included electronic
tagging in the
Bill.
Nick
Herbert:
Could the Minister be more specific? Will he tell
us whether or not the use of an electronic tag would be permitted by
the
Bill?
Mr.
Coaker:
What I am saying is that we do not propose that
electronic tagging should be allowed. If we had envisaged that it would
be allowed, it would have appeared in the Bill. If the hon. Gentleman
wants me to go further than that, he will get the same answer.
Mr.
Hogg:
The Minister is not facing up to his problem,
because, as he knows well, the Court can impose any condition and we
are only dealing here with examples.
Mr.
Coaker:
The right hon. and learned Gentleman is quite
wrong in the statement that he has just made. I think that on
reflection he will agree that the Court cannot impose any condition
that it wants. As he knows, and as I continually repeat, the High Court
is a public authority for the purposes of the Human Rights Act. It
therefore has to take account of that Act and cannot, as he knows,
simply impose any condition that it wants. Although we have listed in
the clause examples of conditions that the High Court may impose should
it believe that it will prevent crime and reduce harm, it has to take
account of the Human Rights
Act.
2.45
pm
Mr.
Hogg:
I am sorry to press the Minister on this.It
is plain from clause 6(6) that a curfew order canbe imposed.
So too, therefore, can a tagging order, because it is necessary to
ensure that the curfew order is kept to.
Mr.
Coaker:
The right hon. and learned Gentleman is trying in
a roundabout way to suggest that the sort of curfew that would be
imposed would be almost synonymous with house arrest. That is not the
case. As he knows, when imposing a serious crime prevention order on an
individual the High Court would not be able to impose house arrest by
confining somebody to their house for nearly 24 hours a day. That would
not be proportionate or appropriate, and the court will not be able to
do that because it must have regard to the Human Rights Act. It simply
will not do that. In the very unlikely event that it did, it would be
subject to appeal. The High Court is a public authority for the
purposes of that Act and will not impose house
arrest.
Mr.
Cox:
With respect, I completely agree that it is a public
authority and governed by the principle of proportionality in relation
to the invasion of freedom, but a tag can be used to track an
individual’s whereabouts, indicate whether he has entered
forbidden premises and monitor with whom he associates. There is
nothing in the Bill to prevent that, and simply attaching a tag might
well be thought much more proportionate than to impose a series of
stringent requirements. There seems to be nothing in theclause
to prevent a judge, referring to the list of considerations, from
saying, “I think we’ll attach a tag to you. That way,
we’ll know where you are at any one time and that you
aren’t going into particular premises.” I can see nothing
to prevent that, and it might well be proportionate in some
cases.
Mr.
Coaker:
As I have said, we do not propose that electronic
tagging should be included in the list. I have said what I want to say
on the
matter.
Amendment No.
103 perhaps stems from the same concern as was expressed on numerous
occasions in another place and repeated on Second Reading in this
House. There is a misconception that the clause could lead to the
subject of an order being kept under house arrest. I reassure hon.
Members that that is absolutely and categorically not the case. Such a
restriction would not be compatible with convention rights, so there is
no way that the applicant authority would apply for, nor the High Court
impose, such an
order.
It is possible,
however, that a reasonable and proportionate prohibition, restriction
or requirement in relation to a private dwelling might be an effective
way to prevent harm from being caused by serious crime. We cannot think
of everything that might possibly prove in the future to be an
effective means of preventing serious crime, and we want the courts to
be able to innovate within the framework of the examples set out in the
clause. For those reasons, I ask the Committee to resist the amendment
if the right hon. and learned Member for Sleaford and North Hykeham
does not feel able to withdraw
it.
A part of the
clause that we have not really touched upon is subsection (5), which
specifies that law enforcement agencies can specify certain details
ofhow conditions in an order relating to the
answeringof questions, the provision of information or the
production of documents are to be complied with. There was a great deal
of concern about the way in which our policy intent was originally
given effect.
May I say to my hon. Friend the
Member for Arundel and South Downs and his hon. Friends that, the Bill
having gone through another place prior to coming here, I hope he
accepts that, although we have resisted a large number of the
amendments that heand his hon. Friends and indeed the hon.
Member for Taunton tabled, we did listen to a large number of the
points that were made in the other place and changed the Bill
accordingly. This is one of those areas.
The Government listened to the
concerns expressed in another place and acted to address them. The
original drafting of this subsection has been tightened
considerably.
Nick
Herbert:
The Minister has been giving way generously, for
which I am grateful. I should like to press him a little further in
relation to the power under subsection (6), the conditions that can be
imposed on a private dwelling. He said that the circumstances in which
restrictions may be made cannot be foreseen and he wanted to give
discretion to the court. This is such an important potential measure,
however, and one that affects an individual’s home—a
place regarded in this country as generally sacrosanct to avoid
restricting an individual’s freedom within his or her own
home—that it is frankly wrong for the Government not to give
some indication of what they have in mind, in terms of the kind or
extent of the restrictions that might be possible under this
legislation.
I wondered,
when the Minister talked about proportionate restrictions, whether he
might give this Committee some indication of what kind of restrictions
these would
be.
Mr.
Coaker:
Of course we do not expect somebody, as a result
of these serious crime prevention orders, to be restricted to their
home for 24 hours. That would clearly be disproportionate. The idea of
having curfews is contained in other legislation, such as antisocial
behaviour legislation. It is perfectly possible to impose a
proportionate and reasonable curfew on someone as a result of
an—[Interruption.] I will give way in a
minute—antisocial behaviour order. As I say, it is a matter for
the courts to determine. We certainly would not expect one or two hours
or 24 hours. It may be that somewhere towards the middle of that and
lower, may be
appropriate.
Let me
just read something. I thought this might come up about human rights
and so on. Article 8 — Right to respect for private and family
life:
“Everyone
has the right to respect for his private and family life, his home and
his correspondence.”
We
all agree with that.
“There shall be no
interference by a public authority with the exercise of this
right”—
again, we
all agree with
that—
“except such
as is in accordance with the law and is necessary in a democratic
society in the interests of national security, public safety or the
economic well-being of the country, for the prevention of disorder or
crime, for the protection of health or morals, or for the protection of
the rights and freedoms of
others.”
My
hon. Friend the Member for Wrexham is not in his place, but it does go
back to the whole nub of the argument. I do not think the right hon.
and learned
Member for Sleaford and North Hykeham
isarguing the complete opposite of what I am saying. I
understand the point he is making. It does mean, however, even within
human rights legislation, that it is regarded as acceptable
sometimes to impose on an individual quite serious restrictions.
The human rights legislation recognises that where it is in the
interests of the broader community, where it is in the interests of
others, it can be in those circumstances
appropriate.
Mr.
Hogg:
I think perhaps the Minister does not realise how he
has undercut his own argument on tagging, because the proviso to
article 8 is precisely the provision that the enforcement agencies
would rely upon in their application for a serious crime prevention
order in support of a tagging provision. They would rely on the
proviso, which I happen to have in front of me, in order to support the
imposition of a tagging
requirement.
We have had an interesting
debate and discussion on this group of amendments and, with the remarks
I have made, I ask the right hon. and learned Gentleman to withdraw his
amendment or, if that is not the case, for the Committee to oppose
it.
Mr.
Hogg:
I am not going to withdraw the amendment but I do
accept that the argument has been thrashed out pretty thoroughly. In
the course of my interventions on the Minister I have really put the
points I wish to put by way of a response. I am not seeking, as it
were, an opportunity to make an extended speech but I will not be
withdrawing the
amendments.
Question
put, That the amendment be
made:—
The
Committee divided: Ayes 5, Noes
8.
The
Committee divided: Ayes 5, Noes
8.
Division
No.
14
]
AYESNOES
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 the debate onthe amendments
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 8, Noes
5.
Division
No.
15
]
AYESNOES
Question
accordingly agreed to.
Clause
6
ordered to stand part of the Bill.
Clauses 7
to 9
or
dered to stand part of the
Bill
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