Clause
10
Right
of third parties to make
representation
Mr.
Hogg:
I beg to move amendment No. 104, in
clause 10, page 7, line 20, at
end insert—
‘(1A) No serious
crime prevention order shall be made unless the High Court is satisfied
that it would be fair to the person making representations under
subsection (1) and was proportionate having regard to the interests of
that person and to the public
interest.’.
The
Chairman:
With this it will be convenientto
discuss the following amendments: No. 105, in
clause 10, page 7, line 26, at
end insert—
‘(2A) No
variation of a serious crime order may be made unless the High Court is
satisfied that the variation would be fair to the person making
representations under subsection (2) and was proportionate having
regard to the interests of that person and to the public
interest.’.
No.
106, in
clause 10, page 7, line 32, at
end insert—
‘(3A) No serious
crime order shall be discharged, in whole or in part, if the High Court
considers the discharge to be unfair to the person making
representations under subsection (3) or to any person affected by it,
or disproportionate having regard to the interests of any person and to
the public
interest.’.
No.
113, in
clause 18, page 10, line 29, at
beginning insert ‘Subject to subsections (4) and
(4A)’.
No. 114,
in
clause 18, page 11, line 4, at
end insert—
‘(4A) If a
change in circumstances is identified under subsection (4), the court
may vary the serious crime prevention order to the extent that the
court considers that the order has become unfair to the subject of the
order or that the terms ofthe order are disproportionate
having regard to that person’s interests or to the public
interest.’.
No.
115, in
clause 19, page 11, line 41, at
end insert—
‘(3A) If a
change in circumstances is identified under subsection (3) and the
court considers that the order or any provision thereof
has—
(a) become unfair
to the subject of the order,
or
(b) disproportionate having
regard to the interests of that person and the public
interest,
the court may
discharge the order or any provision thereof to the extent that it
thinks
fit.’.
No.
125, in
clause 21, page 13, line 17, at
end insert—
‘or if
it considers that there has been a change of circumstances and that, by
reason of that change, the order has become unfair to any person
affected by it including the person who is the subject of the
order’.
No.
126, in
clause 21, page 13, line 29, at
end insert—
‘or by
the person who is the subject of the
order’.
Mr.
Hogg:
The amendments are designed to give greater
protection to third parties who are affected by these orders. As
suggested in an earlier debate, third parties can be affected, as they
may have dealings with
a person who is the subject of a serious crime
prevention order, and their rights will have been prejudiced
bythe order.
The Bill
enables third parties to make representations under three
circumstances: when the original order is made, when there is an
application to vary it, and when there is an application to discharge
it. I entirely agree with the proposition that third parties who are
affected should have an opportunity to make representations. However,
looking at the Bill itself, I find no criteria that would enable the
court to determine whether to accede to the representations made by
third parties.
The
Government are clearly conscious of that point. If one looks at
paragraph 3.6 of the Green Paper on page 37, they address the question
of what thirdparty rights should be. It refers us to the
European convention on human rights: to article 8 on privacy and family
life, and to article 1 of the first protocol, which deals with
interference with
property.
However,
I think that we should be more precise. When we are dealing with a
matter of this importance the Bill should make the criteria absolutely
plain. Therefore, I am trying to incorporate in the Bill a requirement
that the order should not be made by the High Court unless it would be
fair to the person making the representations, and was
proportionate—having regard to the interests of that person and
to the public interest—and that similar criteria should be
brought into play, mutatis mutandis, on the other two applications to
vary and to
discharge.
3
pm
In fact, that
would do little more than what the Government say in the White Paper
that they want to do. However, I am very reluctant to rely on the
convention, because it is expressed in general terms and is not, in my
view, sufficiently explicit in the protection that it gives the third
parties, and is, therefore, not an adequate safeguard. I very much hope
that the Committee will place in the Bill something that would
constitute a more effective safeguard for the rights of said parties,
whose interests might be quite seriously
prejudiced.
Nick
Herbert:
I rise briefly to support the amendment. The
Minister will know that the rights of third parties was an issue that
the Government sought to consult on in their Green Paper, and that it
was one of the areas where concerns were expressed aboutthe
potential impact of the orders. To be fair, the Government have sought
to address the concerns, as has my right hon. and learned
Friend.
In responding
to the various issues that we have raised, the Minister has relied on
the notion of proportionality—that the courts will behave in a
proportionate manner. I agree with my right hon. and learned Friend
that it would be much more satisfactory if those concepts were written
into the Bill, so that we could feel safer about the operation of the
orders. Therefore, I hope that the Minister will respond
sympathetically to what my right hon. and learned Friend
suggests.
Mr.
Coaker:
First, I thank the hon. Member for Arundel and
South Downs and the right hon. and learned Member for Sleaford and
North Hykehamfor the comments that they made about how the
Government have tried to respond to the concerns expressed with respect
to the matter. I appreciate those
remarks.
I am fast
becoming something more of an expert on the matter. People joke with me
that I will have a wig and gown by the end of the proceedings, although
I do not know whether that is appropriate for a civil process. I say
that because the process in a civil court comes up in our
considerations. The “Civil Procedure Rules”, which, as I
understand it, is the bible for civil courts, talks of the overriding
objective of the courts. Those rules are a new procedural
code
“with the overriding
objective of enabling the court to deal with cases justly. Dealing with
a case justly includes, so far as is practicable—ensuring that
the parties are on an equal footing...dealing with the case in
ways which are
proportionate”.
That is
the way that the High Court judge has to deal with the cases before
him. I quoted from the procedure because I think that it is extremely
important; it is not just me asserting it. There is a requirement on
the High Court to act in a just and proportionate
way.
We have discussed
in much detail the Government’s confidence in the
country’s senior judiciary to act in a way that is fair and
proportionate, so I will not go on too long about the amendment.
Suffice it to say that I do not feel that we need to include the
amendment. As I have pointed out, it would provide an obligation on the
courts to act in a way that they are already obliged to do. Clause 10
provides a strong safeguard for those third parties who might be
collaterally affected by the provisions of an order. Those third
parties have a right to make representations to the court when they
would be likely to be significantly adversely affected by the order or,
as the case may be, by variation or
discharge.
Mr.
Cox:
Will the Minister clarify a point of doubt I
have from reading through the clause? Could a person who did not wish
the order to be varied or discharged be heard? Should a member of the
public feel, were a serious crime prevention order to be lifted, that
they would suffer, would they be able to appear in order to argue for
its
continuation?
Mr.
Coaker:
Yes, they would.
Mr.
Hogg:
If the Minister looks at my amendment No. 106, he
will find that the point is explicitly
addressed.
Mr.
Coaker:
Given the way that the court operates, the point
made by the right hon. and learned Gentleman is covered; the answer is
yes.
In operating
that safeguard, the courts will have regard to what is proportionate
and fair, whether or not we tell them to do so. The amendments are
therefore not needed. I emphasise that my noble and learned Friend
Baroness Scotland made it clear in another place that the procedure for
the orders would require the applicant authorities to bring to the
attention of the court the expected impact of the orders on third
parties. Those procedural and legislative safeguards will ensure that
the rights of third parties are effectively protected. In relation to the proposed
obligation to have regard to the public interest, the court will
already be considering what is in the public interest when imposing the
orders. Under clause 1(1)(b), the court will make an order only when it
would protect the public by “preventing, restricting or
disrupting” involvement in serious crime. Under clause 1(3), the
terms of the order must also be appropriate for the purpose of
“protecting the public”. For those reasons, I ask the
right hon. and learned Gentleman to withdraw the
amendment.
Mr.
Hogg:
I will not withdraw the amendment. Let me make one
general point.
Time
and again in our debates, the Minister says, “Well, look, the
High Court and the Crown courts are bound by certain duties, set out in
legislation or the convention, namely to act fairly and
proportionately,” and he points to various articles. The logical
conclusion of that approach is to assert that we will never need to
incorporate the safeguards into legislation becausethe
underlying and underpinning legislation already applies across the
board. I do not agree with that approach. The safeguards should be
incorporated into every Bill under which penalties or evil consequences
would
follow.
Mr.
Coaker:
To clarify matters and to ensure thatI do
not misunderstand the right hon. and learned Gentleman, safeguards
incorporated are incorporated into the Bill. My understanding is that
he does not think they are sufficient. That seems to be the point of
disagreement between us.
Mr.
Hogg:
Forgive me, but in that context we are looking
primarily at clauses 7 to 11. Those are procedural
safeguards—for example, that an individual must be over 18, or
that the said parties have the right to make representations. What is
lacking in the Bill is not procedure—the
procedure for making representations is provided for—but the
criteria on which individuals must rely when seeking to discharge, vary
or oppose the making of an order.
I am trying to incorporate into
the Bill guidance to the courts, along with the concepts of justice and
proportionality. The Minister says in reply that it is quite
unnecessary as it can be found in some of the articles of the
convention. It is perfectly true that some of the articles of the
convention will have an application; I accept that, but I do not accept
that it is right to omit such protection from the Bill simply because
the relevant provisions may be found within the articles of the
convention—which may or maynot apply.
I turn to the McCann case. The
Minister will remember that article 6.2 was held not to apply to McCann
as it was not a criminal case. The plain truth is that we cannot see
clearly, at least not with complete certainty, which of the articles
will be applied by the courts—for example, when an application
is made by a third party—and which will be disregarded. It is
our duty to include in the Bill those safeguards that we
deem to be appropriate, and not have to rely on other legislation that
may or may not have an impact. Those are the only points that
I wish to make, but I shall not be withdrawing my amendment.
Question put, That the
amendment be
made:—
The
Committee divided: Ayes 5, Noes
8.
Division
No.
16
]
Question
accordingly negatived.
Clause 10 ordered to stand
part of the
Bill.
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