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.
11
am
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.
11.15
am
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.
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
]
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.
Members of the
Committee will have spotted that the application to make the fresh
order can be made before the existing order has come to an end, so they
are genuinely rolling-over provisions. I do not want to rehearse all the
arguments that have already been made—you have told us not to do
so, Mr. Bercow, and I understand why—but it is
important to keep in mind the draconian nature of the orders that can
be made. As has been said repeatedly by hon. Members, the provisions
set out in clause 6 will impact on almost any aspect of a
person’s life: where they live, with whom they communicate and
how they earn their living. They are draconian. 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.
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.
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:
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
]
Question
accordingly negatived.
Clause 17 ordered to stand
part of the
Bill.
| 
