Serious Crime Bill [Lords]

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Clause 17

Duration of orders
Mr. Hogg: I beg to move amendment No. 110, in clause 17, page 10, line 15, leave out ‘5 years’ and insert ‘1 year’.
The Chairman: With this it will be convenient to discuss amendment No. 176, in clause 17, page 10, line 22, leave out ‘5 years’ and insert ‘1 year’.
Mr. Hogg: I know that the amendments have the support of my hon. Friend the Member for Hornchurch. I return to the fact that the orders are pretty draconian. We have already argued that point in this Committee and it is generally agreed that they are potentially extremely serious. That being so, one has to ask for how long they should run. We would not necessarily be dealing with people who had committed criminal offences. Some would not have done—I refer to the facilitator. The restrictions that might be contained in the order are specified in clause 6, and they are pretty widespread; they touch on almost every aspect of people’s ordinary lives. The Minister says that they are not punitive but preventive. That is true as to their purpose, but they can plainly be used in a punitive way. Equally plainly, they can have penal consequences. For the reasons that I have already argued in this Committee on many an occasion, I do not think that the safeguards are appropriate or sufficient.
Given that, how long should an order run? The Bill provides for a five-year term—that is the maximum; it would not necessarily be that long—and I believe that that is too long. It should be a lesser period, having regard to all the considerations that I have advanced, hence the proposal that it should be but one year.
James Brokenshire: I support the comments made by my right hon. and learned Friend on the duration of the orders. As he rightly points out, clause 17(2) provides for an order to run for five years. We should consider whether such a period is proportionate or appropriate in the context of any other criminal law action that might be considered in relation to the circumstances to which the order is subject, and of any uncertainties that might arise.
I note that clause 18 deals with the variation of orders, and in some ways there is an interrelationship between the two provisions. However, it is relevant to consider whether the five-year term currently envisaged is appropriate, given that the potential impact of what may be required would clearly be significant. I think, for instance, of the sorts of provisions contained in control orders; I know that in previous discussions and debates the question was raised as to whether control orders were relevant and appropriate, given the context of orders made under the Bill. A parallel can be drawn between those and control orders and orders for antisocial behaviour, but we want to know in what context it applies to the orders in the Bill.
Certainly all of the 18 control orders that have been issued so far required that the people concerned should reside at a specific residence, and permit entry to police officers and persons authorised by the Secretary of State. Sixteen of those subjected to control orders had to surrender their travel documents and more than half of them had to wear an electronic monitoring tag and had to report each day to the monitoring company; they were subject to restrictions on communications, could not maintain or use more than one bank account and had to provide the Home Office with details of their employment.
In the context of the need to protect the public, I understand the desire to be able to impose such conditions, albeit we have serious concerns about the effectiveness of control orders, given the number that have been breached. However, that is the subject of a separate debate.
Mr. Coaker: May I place it on the record that, as the hon. Gentleman concedes, we have debated at length the difference between serious crime prevention orders and control orders? However, of the other civil orders accepted by the House, football banning orders run from two to 10 years, and antisocial behaviour orders and sexual offender orders last for a minimum of two years with no maximum. Again, the conditions that can be placed on people the subject of those other civil orders put considerable restraints on them in order to prevent them from offending again.
James Brokenshire: I thank the Minister for that intervention, but football banning orders and the like have narrow terms of reference. However, I think he accepts that the intention is to provide a degree of scope and flexibility in order to reflect the various circumstances and factors involved in making orders to prevent serious offending.
I understand why the Minister argues as he does, but a balance has to be struck between flexibility and being able to ensure that an element of control can be brought to bear. That is why we suggest a one-year limit. I was drawing a parallel with the control order regime, and although I accept what the Minister said about distinguishing between the two, it is still appropriate to debate the matter. For instance, under the Prevention of Terrorism Act 2005 a non-derogating control order effectively lasts for 12 months, although it can then be renewed. We believe that a parallel can be drawn to ensure that if significant restrictions and restraints are put on a person, there should be at least a 12-month review to see whether those sorts of restrictions were still appropriate given their import and impact.
It is interesting to note that on Second Reading the Minister for Security, Counter Terrorism and Police, the hon. Member for Harrow, East (Mr. McNulty), said that the intent would be that a criminal prosecution would be brought if that was possible. I say to the Minister here that if we had this type of provision, with a 12-month restriction on the extent of this order, at the very least that would provide a mechanism for considering whether a prosecution could be brought at the expiration of that 12-month period or whether it was necessary to continue with a new 12-month order.
So we are not seeking to undermine or challenge the intent behind these provisions. We are trying to ensure that we have, first, an effective mechanism to deal with reviews and, secondly, proportionality in the orders that are granted.
Liberty also highlights the issue of uncertainty about the aspects of the orders that may have been granted and the terms of those orders. It said in its briefing paper:
“The experience of ASBOs and Control Orders reveals several risks about how SCPOs might operate in practice. In particular it suggests that the restrictions imposed on an Order may well be drafted in an uncertain manner; include standard restrictions rather than restrictions which are tailored to each case; and that there will be no regular review of the Order with the result that restrictions will stay in place which are no longer necessary or proportionate.”
Although I understand that it is open to someone to go back to court to seek a variation in the terms of the order, obviously that provision is drafted in a fairly restrictive way, in that the court must be satisfied that certain tests have been passed and that certain requirements apply. If an order was granted for 12 months, that would formally allow a 12-month review of the appropriateness of the terms of the order. Rather than an application by an individual being granted, a 12-month review would provide a mechanism to ensure the appropriateness, and in some ways the certainty, of the terms of the order that is being granted. That may be appropriate not only for the person who is subject to an order but for law enforcement, so that law enforcement officers can ask at the end of 12 months whether the conditions of the order are still applicable or whether they should be looking for something different. A 12-month provision would allow such an analysis to be undertaken, to establish whether the order was operating appropriately.
Mr. Coaker: Can the hon. Gentleman confirm, for my benefit and that of the Committee, that under clause 18 it is not only the person who is the subject of the order who can apply for variation but the applicant authority? Therefore, if the applicant authority wanted to vary the order, it could do so in six months, 12 months or indeed 18 months.
James Brokenshire: The Minister correctly states the provisions of the Bill; the applicant authority has that right under clause 18 to go back to the court to vary the order. However, I am saying that this review would be a natural trigger, after a period of 12 months, that would force the authorities to look again, to ensure that what is being sought remains appropriate, and to consider whether any further provisions might be necessary to reflect changing circumstances.
I am sure that these orders would be reviewed by the authorities to maintain their assurance to the public. However, this review would not only ensure that there is a 12-month restriction to see that there is some proportionality in the way that the restrictions are imposed, but would automatically provide a natural review for the authorities to analyse whether the provisions that are being applied are effective or should be modified in any way by means of the renewal of an order, which would perhaps lead to slightly different conditions being applied.
I talked about the issue of prosecution. The Justice briefing note said that, unlike the Prevention of Terrorism Act 2005, the Bill contains no provision for the consideration of whether a criminal prosecution is possible before a serious crime prevention order is applied for, and that if the Bill is passed it will be possible for prosecutors to apply for serious crime prevention orders where they are not confident that they have enough evidence of a type admissible before a jury to obtain a conviction; the protections of the criminal process will therefore be circumvented.
That is Justice’s view of how serious crime prevention orders will operate. Clearly, it is open to prosecutors to take the view that they want to go down the serious crime prevention orders route for those purposes. It is important to ensure that we are confident that the orders will not be used inappropriately.
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I take on board what the Minister for Security, Counter Terrorism and Police said on Second Reading: that a prosecution would be pursued if it were possible. Our defining goal has to be that this process is a last resort rather than a first resort, as some commentators have suggested. A mechanism for having another 12-month period would perhaps allow for a further review after 12 months to see whether a criminal prosecution might be appropriate.
Mr. Coaker: This goes to the heart of the Bill and what we have been talking about. Of course we want people to be prosecuted, and if they are prosecuted—which is the first option—and convicted they will be subject to criminal penalty. However, the Bill is not about punishment, but about the prevention of future crime. The hon. Gentleman is in danger of rerunning the argument and saying, “These are punitive measures,” whereas our fundamental point is that they are preventive measures and are not a substitute for prosecution, but are about preventing future crime.
James Brokenshire: I hear what the Minister said and I note the previous discussions and debates in Committee on this point. I do not intend to rerun previous debates. However, although I accept his intentions in relation to this being a preventive measure, the way in which the Bill is drafted could allow an alternative approach to be adopted. Hence the reasons for the concerns that have been expressed previously and my concerns about the need to impose a 12-month period to restrict the ambit of the control orders.
In conclusion, there is a clear justification for seeking a shorter period than five years for the operation of the control orders. A 12-month period would be appropriate and consistent with other pieces of legislation. It would allow a proper review of the terms of the orders, to ensure their proportionality and to address any uncertainty about their application, whether in the interests of law enforcement or the liberty of the subject. It would also ensure that the control orders remain appropriate in all the circumstances. That is a reasonable, fair suggestion. I hope that the Minister will consider it appropriately.
The Chairman: Order. The hon. Gentleman has ranged widely in his treatment of the amendments. I am not criticising him for that in any way, but it might be convenient for the Committee if I advise that, in the light of that, I am not minded to allow a clause stand part debate on this clause.
Mr. Jeremy Browne (Taunton) (LD): I shall be brief and to the point. This is the first time that I have chosen to speak this morning. I cannot remember whether the Minister said that certain hon. Members had moved on or passed away, but whatever their fate I am sure that they will not enjoy themselves nearly as much as they would have done if they had been here with us this morning.
I support the amendments. It is worth looking back to clause 6, which lists examples—it is not an exhaustive list—of the sanctions that can be put in place, including severe restrictions on people’s liberties, which, as I mentioned in previous sittings, mean everything short of imprisonment. I stand by that assertion. An individual’s financial property, business dealings or working arrangements—that is a very broad category of restriction—the use of any premises or item by an individual and their travel within the United Kingdom can be restricted. Those are severe penalties.
Mr. Coaker: So that the Committee is in no doubt, they are not penalties or punishments; they are preventive measures.
Mr. Browne: The Minister repeatedly makes that point. The essence of the Government’s argument is, “We prefer to prosecute people if we can, but if we know they are guilty and can’t find enough evidence to stand that assertion up, we have this list of measures instead.” The measures would not always be preventive; they may be imposed on people who have committed offences in the past, or are believed to have done, and who, it is believed, might be willing to do so in the future.
The amendment, which would replace “5 years” with “1 year”, would be more proportionate for someone who may never have been convicted of a criminal offence in their life, but who, it may be asserted, wishes to commit an offence in the future, but who may not choose to do so either.
Mr. Hogg: The hon. Gentleman would probably agree that when one thinks about the rollover provisions, which are the subject of the next debate, orders could run for 10 or 15 years.
Mr. Browne: I am grateful for that intervention and I will come to that territory shortly. The right hon. and learned Gentleman is right; he said 10 to 15 years, but the period could be indefinite; he was being generous. One could pick a figure—a multiple of five, for example—as it is all contained in the clause. One year is more proportionate, given that the person concerned has not been convicted of a criminal offence, and it provides scope for renewal and reflection on a more regular basis than if the period specified is five years, as in the clause as drafted.
Mr. Coaker: May I briefly return to the issue of prevention, which is at the heart of what hon. Members have been saying? I refer the Committee to the tests that must be met in order for a serious crime prevention order to be given, and especially to clause 1(1)(b), which states that the High Court may make an order if
“it has reasonable grounds to believe that the order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime in England and Wales”.
It is always the case that the measures that the serious crime prevention order would put in place would be preventive, preventing crime in the future. An SCPO cannot be given unless that second test is met. In the end, the High Court will be the judge of whether that is the case.
Mr. Crispin Blunt (Reigate) (Con): What is the reoffending rate for people who have committed serious crimes coming out of prison? There is a case for saying that the test would be met by anyone who had been in prison—that based simply on the statistics of people who have been in prison, it is reasonable to suspect that they would reoffend.
Mr. Coaker: I thank the hon. Gentleman for making that point, as it is exactly the point that I was about to make. Figures from the Serious Organised Crime Agency show recidivism rates of 85 per cent. It is not for the prisons or anybody else to determine whether it is appropriate for any of that 85 per cent. to receive a serious crime prevention order; it is a matter for the Crown court, when it is acting in civil way, or for the High Court.
As I shall say in my formal response to the debate, a recidivism rate of 85 per cent. makes the case very well for a serious crime prevention order to be available to prevent a person reoffending after they leave prison. It also makes the case very well that as there is a recidivism rate of such magnitude, SCPOs, as well as other measures, could be an effective tool available to the judiciary and to society to restrict the harm that those people might cause in the future.
The important point is that the vast majority of SCPOs would be imposed on an individual as a result of their criminal conviction.
Jeremy Wright (Rugby and Kenilworth) (Con) rose—
Mr. Coaker: Of course, only the prosecuting agencies could apply a serious crime prevention order. We would expect them to choose it in the first place. Before you rule me out of order, Mr. Bercow, I am coming back to the amendment. I was trying to answer one or two of the points. If the hon. Member for Rugby and Kenilworth will permit me, I must move on.
These amendments would make the maximum length of an SCPO one year instead of five. We chose five years because the vast majority of people engaged in serious crime will be engaged in a criminal lifestyle and will reoffend persistently. Initial work done by SOCA, in relation to its target base, is that the recidivism rate could be as high as 85 per cent. That is the point that the hon. Member for Reigate was making. As a result, we believe that the maximum possible length of five years is appropriate.
I stress that that is the maximum. The hon. Member for Hornchurch does not often do this, but he slightly glossed over that point. It does not have to be five years. It is a flexible measure that is available to the courts. If the court thought that a year was appropriate it would make it a year. If it thought that two years was appropriate, it would make it two years. But the provision offers flexibility up to a maximum of five years so that the court can make a judgment based on the evidence that it has before it for each individual case. That is a reasonable proposition. It is a reasonable power for the court to have.
I am sorry if I get boring on this, but the High Court cannot act in a way that is inconsistent with the European convention on human rights. It is a public authority for the purposes of the Human Rights Act and as such it must act in a way that is consistent with it. If it does not, people can go to the Court of Appeal.
The courts will impose orders that they consider to be reasonable and proportionate. So there is every possibility that orders will be put in place for a range of periods. In addition, for the courts to put in place an order for five years, they will have to have reasonable grounds to believe that it will prevent involvement in serious crime for those five years. If they think that the risk is more short term they would put in place an order for a shorter length of time. For those reasons I think we should resist the amendment and allow the courts to have the discretion available to them so that they can make the best judgment on the basis of the evidence that is before them.
Mr. Hogg: I am not going to withdraw the amendment. I should like to make a number of points, if I may. The Minister has spent some time arguing that the provisions are not penal, but preventive. In one sense that is true. I have acknowledged that. I have made the point, as has my hon. Friend the Member for Hornchurch, that one looks to the consequences. The consequences are very severe and are certainly penal in character.
If one looks at the White Paper, one sees sometimes that the motive is effectively penal and not preventive. The fifth substantive paragraph on page 31, for example, contains a lot of discussion as to circumstances in which the order could be made as an alternative to prosecution. The following arguments are put forward: cases can be quite difficult to put together; overlong trials are not to be encouraged; somebody may be on the margin of the substantive conspiracy, and so on.
What exactly is being contemplated is that these orders will be used as an alternative to a criminal prosecution. Once one understands that, the argument that they are wholly preventive rather than penal disappears, at least to a high degree. The motive is to catch those who are guilty of criminal offences, but in respect of whom it is not desired, often for pragmatic reasons, to bring a prosecution. That is bad news. It is bad news for the variety of reasons that I have already articulated: namely, that none of the safeguards that are required in criminal cases applies.
It incidentally raises another interesting consequence. Let us assume that for the pragmatic reasons identified on page 31, it is decided not to prosecute a person who is on the margins of a criminal conspiracy. The consequence upon them of an order being made can be much graver in terms of the penalty than if that person were to be prosecuted, convicted and sentenced to a penalty by the original criminal court. That, again, is bad news because it undermines the presumptions of civil liberties for which I have argued in front of the courts for some 30 or 40 years. I regard that as thoroughly bad news.
The Minister has reminded us, as he has done many times, that the High Court is a public authority and is caught by the provisions of the human rights legislation. That is true, but is an irrelevant consideration unless and until a relevant article is brought into play. The Minister will remember that in our previous discussions, he and I have referred repeatedly to the case of McCann; that was a decision of the House of Lords relating to antisocial behaviour orders. However, he will remember that I was able to point out that article 6.2—one of the fundamental articles in the convention—did not apply. The House of Lords ruled in terms that as the ASBO provisions were not deemed to be criminal, the provisions in article 6.2 had no application. Consequently, the assertion made by the Minister that the protection afforded by the convention is absolute is true only to the extent that the courts will hold that an applicable article comes into play.
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Chris Ruane (Vale of Clwyd) (Lab): If I understand the gist of what the right hon. and learned Gentleman is saying, that is assuming guilt before the event takes place. What was his attitude towards the travel restrictions placed on miners during the miners’ strike in the 1980s? Was he a supporter of that?
The Chairman: Order. The hon. Gentleman asked that but he should not have done so. I prohibit the right hon. and learned Gentleman from replying. I hope that he will now proceed.
Mr. Hogg: Indeed, Mr. Bercow. That is the answer that I was going to give. That is absolutely irrelevant.
The Chairman: Order. I am very glad that the right hon. and learned Gentleman is telling me that, in any event, he was going to behave well. I was pointing out that the hon. Gentleman from the Labour Benches was behaving badly.
Mr. Hogg: I was only showing my support for the Chair, Mr. Bercow. I did not know that that was a crime. Maybe it is a crime in respect of which I am going to have a serious crime prevention order. After this Government, anything is possible.
I was trying to deal with the point about the convention, which is an important one. People suppose—as this Committee appears to suppose—that the High Court is always bound by the terms of the convention. However, it is bound by the terms of the convention only when the articles are brought into play. They will come into play in varying and different circumstances. In particular the articles that apply to criminal cases will not apply in the context of serious crime prevention orders, because, for example, of the McCann judgment.
So, taking those two considerations into account, I agree with the argument that has been advanced that 12 months is long enough. I hope that the Committee will support that position, and I do not withdraw the amendments.
James Brokenshire rose—
The Chairman: I will call Mr. Brokenshire, but I say to the hon. Gentleman that if he has new and additional points to make in respect of the amendments, he is welcome to make them. It is fair to say that an hon. Member can speak for a second time on such an amendment, at the discretion of the Chair. I am happy to exercise that discretion, but we must be treating of new matters.
James Brokenshire: Thank you for your discretion, Mr. Bercow, in allowing me to rise for a second time. The only reason for coming back was to respond to the Minister, who prayed in aid the recidivism rate as a justification for extending the period to five years. The latest National Audit Office figures show that breach rates for ASBOs are running at 55 per cent. and at 70 per cent. in certain parts of the country. I would be very cautious about praying in aid the recidivism rate as a way of justifying the need for serious crime prevention orders, particularly when breaches of other orders are running at such a rate. For the reasons that my right hon. and learned Friend has articulated well, we shall be supporting the amendment.
Question put, That the amendment be made:—
The Committee divided: Ayes 6, Noes 8.
Division No. 17 ]
Blunt, Mr. Crispin
Brokenshire, James
Browne, Mr. Jeremy
Hogg, rh Mr. Douglas
Rogerson, Dan
Wright, Jeremy
Campbell, Mr. Alan
Coaker, Mr. Vernon
Eagle, Maria
Moran, Margaret
Mountford, Kali
Reed, Mr. Jamie
Ruane, Chris
Waltho, Lynda
Question accordingly negatived.
Mr. Browne: I beg to move amendment No. 9, in clause 17, page 10, line 24, leave out subsections (5) and (6).
The Chairman: With this it will be convenient to discuss the following: Amendment No. 111, in clause 17, page 10, line 24, leave out ‘does not’ and insert ‘shall’.
Amendment No. 112, in clause 17, page 10, line 25, at end insert
‘unless a period of not less than 12 months has elapsed since the date when the order, or any provision of an order, ceases to be in force.’.
New clause 3—Review of orders (No. 2)
‘(1) On the expiration of an order the court shall make a new order to the same or similar effect if—
(a) on the presentation by the applicant authority of new evidence not used as the basis for the original order; and
(b) after a review has been undertaken by the Director of Public Prosecutions of the possibility of criminal prosecution;
the court has reasonable grounds to believe that the making of the order would protect the public by preventing, restricting or disrupting involvement, by the person who is the subject of the order, in serious crime in England and Wales.’.
New clause 4—Restrictions relating to renewal of orders
‘A person who has been the subject of an order under section 1 may not be the subject of a second order in the absence of a criminal conviction.’.
Just before we get the debate on these amendments and new clauses under way, I take the opportunity to underline that the issues under consideration are the provisions for the renewal of orders. It is upon that specific subject that the debate should focus. We cannot and will not have a further debate on the general principles of such orders and on arguments for and against them.
Mr. Browne: The reason why I have tabled amendment No. 9 and new clauses 3 and 4 and regard them as important is that they get to the nub of what the Bill is about—the excessive use of arbitrary force by the state. If I may take hon. Members through the proposals that I am putting before the Committee, I hope that everybody will understand the point that I am making.
Amendment No. 9 would remove subsections (5) and (6). Subsection (5) sets out the power to make an additional order, over and above the five years that we have just voted to keep in the Bill, but contains a rather spurious use of the word “new”, in the phrase “making a new order”. That is a deceptive use of language, because we are actually talking about indefinitely extending an order that is already in place, rather than a new order in any meaningful sense.
A few moments ago the Minister said, “Ah, but you’ve got to remember that the five years is a maximum figure. It could be lower than five years.” That is true, but the figure could be indefinitely higher than five years. The right hon. and learned Member for Sleaford and North Hykeham said that the period could be 10 or 15 years. Indeed, it could be any multiple of five, yet no new evidence needs to be produced to apply for an extension at all. What is more, under subsection (6) an order can be made
“in anticipation of an earlier order...ceasing to be in force.”
In new clauses 3 and 4, we are arguing, first, that there should be a need for fresh evidence over and above what was originally available when the first five-year restriction was put in place. Secondly, there should be the ability to consider again the possibility of a criminal prosecution. A criminal conviction should be needed to give somebody a second order. With both the proposed provisions, we are trying to give the individual citizen who is subject to the orders some reasonable expectation of when their liberties will cease to be curtailed so restrictively under clause 6.
Under the Bill, somebody who has not necessarily committed a criminal offence can be restricted in all the ways outlined in clause 6, which the Committee voted through. They will have no ability to know how long those restrictions will be in place. The figure of five years is slightly misleading, because if the restrictions can be renewed and extended in multiples of five without any new evidence being produced, five years is just a starting point. If the Bill goes through unamended, some people will be restricted for the rest of their lives in all the ways laid out in clause 6 and in other ways unspecified in the Bill. As a Committee, we should not allow that to pass into law and to disturb fundamentally the balance between the state and the individual citizen.
Mr. Hogg: I support the amendment. I should also like briefly to speak to amendments Nos. 111 and 112, which are in my name and which are designed to have effects similar to those of amendment No. 9.
My purpose is to stop the rolling over of orders in the way that the hon. Gentleman has described. In the Bill, provision is made for the rolling over of orders without limit of time. There is no limit at all on the number of orders that can be made seriatim, as lawyers used to call it before the Latin tags were prohibited. That means consecutively. You knew that, Mr. Bercow, but not everybody on the Committee did.
Secondly and differently, as I said in the previous debate, page 31 of the Green Paper makes it quite plain that the Government are contemplating using serious crime prevention orders as an alternative to prosecution. Although it is right, in a sense, to say that the orders are preventive, a policy of using them as an alternative to prosecution, which is the stated policy, comes very close to penal orders without the protection of the convention on human rights, which is often invoked by the Minister. Many of the important provisions of the convention apply only to criminal procedure. For example, some of the provisions of article 6 have no application, as stated by the Lords in the case of McCann, so we are dealing with a serious reduction in the liberty of subjects. Given that background, one has to ask—
Mr. Coaker rose—
Mr. Hogg: I shall just finish my point. I pose this rhetorical question, to which the Minister can reply. How long should such a penal system remain in force?
Mr. Coaker: As long as the court deems it appropriate. The right hon. and learned Gentleman referred continually to the McCann case, in which it was found that ASBOs were a civil measure. He drew attention to article 6.2 of the European convention on human rights, which does not apply because we are talking about a civil measure; however, article 6.1, on the right to a fair trial, will apply.
11.30 am
The Chairman: Order. I recognise that the Minister wants to respond to points that have been made to facilitate the flow of the debate and, as he would perceive it, to enhance understanding of the Bill. However, I have said relatively gently that we cannot—and will not—rehash or reheat debates and arguments. I now appeal to and exhort the right hon. and learned Gentleman during the remainder of his remarks not to dwell on matters, however important he thinks that they are, that the Committee has already addressed. I was hoping shortly to hear the word “renewal” from him, as the substance of his argument should focus on that point.
Mr. Hogg: Forgive me, Mr. Bercow. The last thing that I want is to transverse on your patience, but whether an order should be renewed—“renewal” is now firmly on the table—is to be determined by the nature of the orders. If the orders were fairly minor in character, were surrounded by all the safeguards that I have urged on the Committee and were of short duration and applied to people who had committed criminal offences, renewal would not be so oppressive.
If all of the considerations that I have identified do not exist, renewal will become oppressive especially when we are dealing without a time limit or occasion to that renewal. We are laying the foundations for a very oppressive regime, and key to that is the power of the enforcement agencies to ask the court for renewal. I have a fundamental objection to the measure; it is not a slight objection. I hope therefore that the Committee will reject the concept of the rolling renewal that is contemplated by the Bill. The lead amendment is tabled in the name of the hon. Member for Taunton, so it is up to him to determine whether to withdraw it.
Mr. Browne: It is not my intention to withdraw the amendment. I wish to press it further.
James Brokenshire: The issues arising from the amendment have been highlighted effectively during the debate. There is clearly much unease and uncertainty about the import of the provisions in relation to the duration of the orders, how they would apply and what safeguards and protections are in place to ensure that they are appropriate and effective in terms of protecting the public, but we must not impose undue conditions or restraints. Clearly, the duration of an order is entirely relevant and appropriate when examining the breadth and scope of the ambit of the protections offered. I shall therefore listen carefully to what the Minister says in response to the points that have been made. They have been made effectively and he has much to come back on to justify the current position.
Kali Mountford (Colne Valley) (Lab): I oppose the amendment. As a Government Back Bencher, I realise that it might be dangerous to do so before the Minister has given his explanation of why we should resist it. However, I do so on behalf of my constituents and I shall briefly explain why.
The purpose of the orders is the prevention of crime, and I see a distinction between the two sides of the House on the aim of the orders. The courts ought to anticipate the orders. We must bear in mind the seriousness of the crime that we are dealing with. I am thinking about some of the cases to which my constituents have been subjected, some of whom have been victims of serious crimes, particularly those involving children or violence against women. Some of these crimes do not just occur overnight, but are planned over a long period of time. It seems right to me that the court should anticipate whether a lot of planning was involved in the crime.
It would be wrong if we, as a House of Commons, were not thinking on behalf of the victim. If a court thinks that a crime is being planned, it should be able to keep in place the restrictions on the people it believes to be involved. I ask the Committee to think from the other perspective—that of people who have been victims of crime and who we anticipate might be victims of crime in the future. If we know that serious crimes are being planned and there is evidence that can be used in court showing that people who have been involved in such crimes in the past might be involved, I agree that we should prosecute. Is it not right simply to say that courts should intervene if we can restrict people’s behaviour to stop them being involved in crime in the first place?
Chris Ruane: My hon. Friend has pointed out the dividing line between us and the Opposition. What does she think would be the assessment of that great Tory arbiter, the man on the Clapham omnibus? What side would he take?
Kali Mountford: I do not make a distinction between people from Clapham, Colne Valley, and any other place beginning with C or anywhere else. I have told the Committee on previous occasions that the country is asking us to be on the side of the victim. I think that we are in danger of being on the wrong side of the argument.
Mr. Browne: I wonder whether the hon. Gentleman is right in assuming that the average person on the Clapham omnibus, or any other bus, does not hold our liberties in great regard and thinks that somebody who has committed no criminal offence should be subject to sanctions that could potentially exist for the rest of their life.
Kali Mountford: The hon. Gentleman has made the argument about the balance between the civil liberties of the accused and the victim many times, and I have responded to it.
I am merely pointing out that by this point, the court will already have been through a process of considering whether the person presented to it is a risk to the public. It will have to have gone through that process. We have discussed the process again and it is reasonable for the court, with everything that it has had in front of it, to be able to anticipate at the end of the order whether it needs to be put in place again. Whether it is after one, two or five years—the court can impose an order of any length, not just five years—if a court realises that an order must be re-imposed, it would be wrong-headed were it simply not able to do it. That would not give the protection to the public that I want to see.
Mr. Coaker: I thank my hon. Friend for that powerful contribution, which goes to the heart of the debate. My hon. Friend and all hon. Members would defend civil liberties. We understand that, but—this is part of the reason for the Bill—in certain circumstances it is necessary for the victim’s civil liberties to be given a little more precedence than those of somebody who is causing harm to a community and may cause it harm in the future. That is my hon. Friend’s point. It will be very difficult for us to explain to our constituents if we pass a measure in Parliament that prevents the court from doing something which could prevent harm to them in the future. My hon. Friend’s powerful speech reminds the Committee and all hon. Members that there is a difficult balance to strike between the rights of the individual subject and public protection. We are trying to strike that balance and we ought to remember the civil liberties and rights of the victim as much as we sometimes remember those of the perpetrators of crime. It makes sense to include something in the clause to anticipate an earlier order or provision ceasing to be in force.
I can understand, to an extent, why the hon. Member for Taunton tabled the amendments, but I hope—although, given the debate, I am not that hopeful—that he will accept that they are unnecessary. He seeks to provide a protection to subjects of orders so that the orders are not renewed unreasonably on expiry.
Dan Rogerson (North Cornwall) (LD): In a previous discussion, the Minister mentioned a statistical likelihood of reoffending as a reason for such a provision. In the context of renewal and talking about victims, we could be led into talking about a victim when we have not got one at this point. We are talking about potential crimes that may be committed in future. Does the Minister feel that we have a role in respect of victims even though we are talking about potential crimes that may be committed in future?
Mr. Coaker: The whole point of serious crime prevention orders is to prevent there being victims in future. A court will not give a serious crime prevention order, or put one on an individual, if it did not believe that it would prevent serious crime in future—in other words, the orders are to protect the public. That was the point that my hon. Friend the Member for Colne Valley made and that is what I say to the hon. Member for North Cornwall. I am sure that if he spoke to his constituents in North Cornwall, many would say that they want the public protected and victims’ rights given a little bit more precedence and priority than is sometimes the case.
The Bill already provides protection to the subjects of the orders so that those are not renewed unreasonably on expiry. I remind the Committee that for an order to be renewed on expiry, as provided in the clause, the test in clause 1 would have to be met in exactly the same way as if it were a brand new application. The applicant authority would have to provide then High Court with
“reasonable grounds to believe that the order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime”.
As we have already discussed in relation to clause 1, that provides an effective test for applicant authorities to have to meet when applying for an order. The test is explicitly laid out in clause 1, the implications of which we have debated a number of times. Any renewal or new order that is put in place has to meet that test, whether on the expiry of the existing order or before a new order is made.
Mr. Blunt: I should like to mention something, just so I am completely clear about what “renewal” means in the context of clause 1. People who have been convicted of a serious crime, under any test that the Minister is presenting under clause 1, can expect to be subject to orders forever because of the recidivism rate, which is the evidence that he has given for them to be subject to an order. People convicted of serious crimes will leave prison with all the other paraphernalia, including parole and everything else, with the Prison Service and their time in prison having failed to address their recidivism rate. The failure of our public policy in this area will be addressed by these orders and people can expect, on the balance of the reasonableness test in clause 1, to be subject to them for the rest of their lives.
Mr. Coaker: There are a couple of points there. Without going back to the standard of proof debate, the hon. Gentleman will know that the matter is not dealt with on the balance of probability. First, under clause 1, as we said, the standard of proof would be virtually identical to the criminal standard, so it is not about the balance of probability in respect of clause 1(1)(a). Secondly, of course one wants to see the recidivism rate—the reoffending rate—reduced. Of course, the hon. Gentleman raises a number of important issues about what happens in prison, including how we prevent reoffending and the sort of treatment that is given in prison for drug addiction. Of course, the hon. Gentleman raises a number of important issues about what happens in prison, including how we prevent reoffending and the sort of treatment that is given in prison for drug addiction. All of those are crucial and they need to be worked on and developed. My hon. Friend the Member for Liverpool, Garston will consider them in her new role in the Ministry of Justice.
However, the need to develop policies in other areas is not a reason for making available to the courts measures that might prevent crime in future. All that we are doing here is adding to the options that the court might choose to use in order to prevent harm to the community. The hon. Member for Reigate makes a powerful point about the other issues that need to be addressed. However, that is no reason for not doing this; it is a reason for considering what more we need to do on other policies while continuing to develop this one.
11.45 am
Mr. Hogg: I am very grateful to the Minister for giving way. Perhaps he would reflect that he has done less than justice to the point made by my hon. Friend the Member for Reigate. While clause 1(1)(a) imports something approaching the criminal standard, clause 1(1)(b) does not, in that it says
“it has reasonable grounds to believe”.
In the case of a conviction, the court has to be satisfied merely that there are reasonable grounds to believe and—as my hon. Friend said—on the basis of a conviction, orders can, effectively, be made indefinitely.
Mr. Coaker: As I say, if somebody has been convicted of a serious crime and, in the judgment of the court, continues to pose a risk to the public, of course a serious crime prevention order should be available to the courts. I apologise to the hon. Member for Reigate—I was not making light of his comments; I was agreeing with him that more needs to be done in other areas, and that is what we are trying to do. My point was that that is not an argument against serious crime prevention orders, which should be available to the courts should they choose to use them; it is an argument for developing other policy alongside them.
Kali Mountford: Is there not another choice? Are not offenders also free to desist from their behaviour? They can simply give up crime.
Mr. Coaker: My hon. Friend makes the very point that I was going to make next. It is an extremely good one, and I thank her for her well-put intervention.
Mr. Blunt: On precisely the point raised by the hon. Lady, of course that choice is available—it is the one that everybody wants people to make—but under these provisions, somebody can be made subject to an order having finished a term of parole or as soon as he is released from prison. The fact that he has been convicted is the reason for his being made subject to an order. He has not said that he will be a good boy—at current rates, thanks to the failure of policy, 85 per cent. of people who leave prison are not good boys; they reoffend. A conviction is a reasonable ground under clause 1(1)(b) for the application of one of these orders. My concern is that this measure is being used as the easy way out because of the failure of our penal policy to address recidivism in prison—we will just pass orders for ever on people, once they have been convicted of serious crime. Our having to go down this route is an admission of a terrible failure in our criminal justice system.
Mr. Coaker: I do not accept that at all. The hon. Gentleman pointed out the first part of the test, which is a criminal conviction for involvement in serious crime. I do not want to read out again clause 1(1)(b), but the judgment of the Court has to be taken into account. Involvement in serious crime is one part of the test. The second part of the test is that the Court believes that such action would protect the public by preventing crime. Is the hon. Gentleman really saying that a serious crime prevention order should not be put in place if the Court believes that somebody will commit crime in future?
My hon. Friends and I think that if a court judges that applying a serious crime prevention order to an individual who has been involved in serious crime will prevent crime and harm, the vast majority of people in this country will say, “You impose that order.” As my hon. Friend the Member for Colne Valley said, the individual can choose to obey the law, as the vast majority of people in this country do, and not be made subject to a serious crime prevention order.
The Chairman: Order. The hon. Gentleman must not allow himself again to be inveigled into straying from order.
Mr. Browne: Further to the point raised by the hon. Member for Colne Valley, if a person leaves prison determined to be one of the 15 per cent. who do not reoffend, how can they prove to the Minister’s satisfaction that their future intentions are honourable?
Mr. Coaker: With due respect, it is a question of proving that not to my satisfaction but to the court’s satisfaction. [Interruption.] I will finish the point. It is the court’s decision that is crucial.
Mr. Browne rose—
Mr. Coaker: I will move on.
Chris Ruane: May we remind the Committee that we are not talking about petty criminals? Some 85 per cent. of them are recidivists, and such people are not going to pinch a Mars bar, for example. They are serious, organised criminals, and if they get back on the streets and continue their dirty work, society will be the poorer.
The Chairman: Order. I appreciate the purpose of the intervention, but I repeat again for the avoidance of doubt that the issue with which we are dealing is the question of the renewal of orders. The right hon. and learned Member for Sleaford and North Hykeham explained that he thought that it was relevant to refer slightly more widely because he was talking about renewal. The Committee must not dilate upon the general principle, which it has very thoroughly considered.
Mr. Browne rose—
Mr. Coaker: Go on.
Mr. Browne: The Minister probably misunderstood my intervention because I worded it badly by referring to him personally. The point that I was trying to make is, how is someone with honourable future intentions meant to demonstrate that good intent? At the moment, the assumption would be made, on the basis of likelihood, that that person would offend. If that person is not going to do so, it is impossible for them to prove that they are going to be good in the future.
The Chairman: Order. Again, the intervention may have been well intended, but it was not relevant to the question of renewal.
Mr. Coaker: So that I am not inveigled again, I shall finish my remarks on that issue. [Interruption.] No, I will move on.
When considering the renewal of orders, a High Court judgment on whether a person is potentially a threat to the public because of their involvement in serious crime is a far more relevant factor than what the order was based upon or whether a specific period of time has elapsed.
To constrain the Court’s judgment in the ways that have been proposed could lead to the perverse situation in which a court might feel that it was reasonable and proportionate to grant an order to protect the public, but is unable to do so.
Mr. Blunt: The issue of renewal relates to the automaticity that I fear we will set up in the system if the measure goes through as drafted in the Bill. Once the reasonable test is passed, people who are convicted of the offences in the schedule will automatically be subject to these orders when they come out of prison. Those orders will be automatically renewed unless a person can get themselves off the hook. The issue is that if the recidivism remains, it is quite difficult to see, as the hon. Member for Taunton says, how that would be established. It is the automaticity that is coming into the system with these renewal orders that should concern the Committee.
Mr. Coaker: The hon. Gentleman makes his point reasonably. I do not believe that there is an automatic renewal in the Bill. There is the possibility of renewal, providing that the tests set out in the Bill are met. If the tests are not met, it is open to the court to renew an order. I would find it hard to explain to one of my constituents why a reasonable and proportionate order compatible with convention rights was not put in place, when it could have prevented harm to them and it could have prevented a serious crime.
I take the hon. Gentleman’s point about a renewal being automatic, but I do not think that the Bill provides for an automatic renewal, for the reasons that I have stated.
James Brokenshire: It is my understanding that a further renewal of an order would be treated as a new order for the purposes of the Bill and considered ab initio. In the regulatory impact assessment, it was stated:
“In total we expect about 30 SCPOs to be applied for annually.”
Does the Minister still stick by that estimate in the context of the renewal of orders? From what we have heard during this debate, we can certainly expect a lot more than 30 orders annually.
Mr. Coaker: That is the number that we put in our regulatory impact assessment, and it is the number that we expect. The number that will be renewed will be a matter for the courts.
As I said, we have clearly laid out our proposal and we have discussed it fully. There is clearly a difference of view within the Committee. However, the power to renew these orders is an important one, and I think that most of our constituents would feel the same.
Question put, That the amendment be made:—
The Committee divided: Ayes 6, Noes 8.
Division No. 18 ]
Blunt, Mr. Crispin
Brokenshire, James
Browne, Mr. Jeremy
Hogg, rh Mr. Douglas
Rogerson, Dan
Wright, Jeremy
Campbell, Mr. Alan
Coaker, Mr. Vernon
Eagle, Maria
Moran, Margaret
Mountford, Kali
Reed, Mr. Jamie
Ruane, Chris
Waltho, Lynda
Question accordingly negatived.
Clause 17 ordered to stand part of the Bill.
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