Serious Crime Bill [Lords]
Right of third parties to make representation
(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 persons 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
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 proportionatehaving regard to the interests of that person and to the public interestand that similar criteria should be brought into play, mutatis mutandis, on the other two applications to vary and to discharge.
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 proportionalitythat 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 practicableensuring 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 Governments confidence in the countrys 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. 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
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.
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 safeguardsfor 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 procedurethe procedure for making representations is provided forbut 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 conventionwhich 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 courtsfor example, when an application is made by a third partyand which will be disregarded. It is our duty to include in the Bill those safeguards that we
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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