Clause
11
Notice
requirements in relation to
orders
Mr.
Hogg:
I beg to move amendment No. 107, in
clause 11, page 8, line 7, at
end insert—
‘(1A) The
subject of a serious crime prevention order is not bound by it unless,
not less than 56 days before the date on which the application for the
making of the order was heard, the subject was served with a notice
setting out the terms of the proposed order together with a copy of all
the written evidence and a summary of all the oral evidence that would
be relied
upon.’.
The
Chairman:
With this it will be convenient to discuss
amendment No. 108, in clause 11, page 8,line 11, at end
insert
‘but if a court
is satisfied that the subject of a serious crime prevention order has
not received that notice and is not otherwise aware of its terms, the
notice shall be deemed not to have been
served.’.
Mr.
Hogg:
These amendments have two quite separate purposes.
The purpose of the first is that the person against whom the order is
sought should be given due notice of the terms of the order and of the
evidence that is to be relied upon. The purpose of the second
amendment, differently, is that in appropriate circumstances the deemed
notice will be disapplied.
May I explain briefly what I
have in mind? It is a matter of natural justice that a person against
whom an order is sought should be told in good time the terms of that
order. It is in accordance with the principles of natural justice that
the prospective subject of the order should have a clear indication of
the nature of the case being put against him—or her—so
that he can respond to it.
It is not clear from the Bill
what the procedure will be for giving notice of the orders sought for
satisfying the court of the requirements. The Bill is silent on that
point; perhaps rules will be made later that will
give
guidance. However, as a matter of general principle, due notice should
be given of the terms of the relief being sought and of the nature of
the evidence. The
second amendment relates to the effect of the notice. There is a
provision for deemed notice, which is to be obtained by sending it by
recorded delivery tothe last known address. Consequences flow
from that, namely, that the person is bound by the order and if that
person is in breach of the order, penal sanctions attach.
However, there may well be
wholly reasonable circumstances when, notwithstanding the fact that the
notice was sent to the last known address, it was not received. The
person who was the subject of the order but who did not receive it
should be given the ability to go to the court and ask for the notice
to be disapplied. I am prepared to accept that this is one area in
which the reverse burden of proof is probably appropriate, and the onus
of proving non-receipt should lie with the person to be affected by the
order. In terms of natural justice, both the provisions, or something
like them, should be incorporated in the
Bill.
Mr.
Coaker:
If the right hon. and learned Gentleman will bear
with me, I may say something at the end of my remarks that will be
helpful to him, to show that we try to
listen—
Mr.
Crispin Blunt (Reigate) (Con): Why not say it at the
beginning?
3.15
pm
Mr.
Coaker:
Mr. Benton, I have pointed out the
number of times we agreed with the Opposition in the House of Lords and
amended the Bill accordingly. We tabled an amendment on armed robbery,
which we included in the schedule. The schedule was voted against, even
though it included something that the Opposition wanted. I was about to
say something reasonably positive to the right hon. and learned
Gentleman and I get scoffed at—my confidence is seeping away as
we continue.
On
amendment No. 107, the civil procedure rules provide for notice to be
given to the proposed subject of an order when an application for an
order has to be made. Under those general rules, the notice period is
usually three days. I am afraid that—this is where I differ with
the right hon. and learned Gentleman—I cannot support the idea
of acquiring a notice periodof 56 days because I believe that
that would be impractical. It could have the perverse effect that,
where an order could prevent an immediate harm, law enforcement and the
applicant authority would have to wait nearly two months before they
could seek an order in the High Court. The people who might be harmed
by the serious criminal behaviour that the order is designed to prevent
would want us to accept that such a delay in preventing harm was
inappropriate.
I am
confident that, as part of giving effect to the overriding objective,
an adjournment could be granted, if to do otherwise would cause
injustice. However, with
regard to the right hon. and learned Gentleman’s amendment, we
will consider what an appropriate period of time would be. It might be
that three days is too short, although we feel that 56 days is too
long.We want to consult the applicant authorities
andother authorities. We would like him to withdraw the
amendment, with my commitment that we will look at the issue. However,
to be clear, we think that 56 days is too
long.
Mr.
Hogg:
The Minister might be right in saying that 56 days
is too long; I can see arguments against me on that point. I would also
be pleased to know whether his commitment extends to giving notice of
the evidence on which the application would depend, because there is no
current obligation for the authorities to tell the prospective subject
of the order what that evidence is.
Mr.
Coaker:
The right hon. and learned Gentleman is pushing it
now, and all I can say is that I havemade a commitment with
respect to the amendment. Without making a commitment, I will look at
the second point that he made with respect to the
amendment.
Amendment
No. 108 focuses on the requirement in clause 11 that an order cannot
take effect unless the subjects have either been given a notice setting
outthe terms of the order or were represented at the
proceedings at which the order was made. Under the amendment, no notice
would have been given if it could be shown that the notice was not
received. The provision is not necessary because section 7 of the
Interpretation Act 1978 already makes provision about the service of
notices in the post. In particular, it provides that the rules on
service by post will not apply if it appears that a notice served by
post was not received. Having made those comments, I wonder whether the
right hon. and learned Gentleman would consider withdrawing his
amendment.
Mr.
Hogg:
Breaking the habit of a lifetime, I intend to be
collegiate.
Mr.
Blunt:
But not a team
player?
Mr.
Hogg:
But not a team player. I understand the point about
56 days and I am perfectly prepared to accept, as I have already
indicated, that the Minister might be right in saying that 56 days is
too long. I very much hope that the Minister will accept that natural
justice requires that the person who is made the subject of the order
knows the nature of the case and, preferably, the evidence that is
relied upon when the order is sought. But in the spirit of
non-team-playing collegiate behaviour, without prejudice to what I may
do on Report, I beg to ask leave to withdraw the amendment.
Amendment, by leave,
withdrawn.
Clause
11 ordered to stand part of the
Bill.
Further
consideration adjourned.—[Mr.
Alan
Campbell.]
Adjourned
accordingly at nineteen min
utes past Three o’clock till
Tues
day 3 July at half-past Ten
o’clock.
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