Clause
18
Variation
of
orders
Question
proposed, That the clause stand part of the
Bill.
The
Chairman:
With this, it will be convenient to discuss new
clause 2— Review of
orders
—
‘(1) The
relevant applicant authority shall inform the High Court in England and
Wales of any change in circumstance which may entitle the person who is
subject to the order to apply for a variation or
discharge.
(2) The relevant
applicant authority shall inform the High Court in Northern Ireland of
any change in circumstance which may entitle the person who is subject
to the order to apply for a variation or
discharge.’.
—
[Mr. Jeremy
Browne.]
Jeremy
Wright:
I have a specific concern regarding clause 18,
which I hope that the Minister can reassure me about, that relates to
the provisions dealing with applications to vary an order that may be
made by the relevant applicant authority. I assume that the situation
envisaged is that the authority that originally sought an order and had
it granted wishes to go back to the court for a variation on that
order. The conditions under which the authority is able to do that, as
set out in clause 18, are different from the conditions faced by the
person subject to an order who then wishes to go back to court to have
it varied. That causes me a little concern.
Clause 18(4), which deals with
the conditions attached to the person subject to the order,
states:
“The
court must not entertain an application by the person who is the
subject of the order unless it considers that there has been a change
of circumstances affecting the
order.”
By comparison,
however, clause 18(8)
states:
“A
variation on an application under subsection
(3)(a)”—
in other
words, an application for variation by the relevant applicant
authority—
“may
include an extension of the period during which the order, or any
provision of it, is in force (subject to the original limits
imposed)”;
in other
words, the five-year time limit. But in the case of an applicant
authority making an application for variation, there is no requirement
regarding a change of circumstances. I am concerned about that, simply
because I do not think that the Government would wish to create a
position in which the relevant applicant authority can have another
bite of the cherry, in order to obtain a more stringent set of
restrictions on the liberty of the person subject to the order than it
was able to get in the first place.
The courts should not be tied
up with repeated applications by the relevant authority, just to get a
few more restrictions than were obtained in the first place. The
Minister said earlier in relation to a different clause that it would
be for the court to decide what sort of restrictions are appropriate
and for how long. That was in connection with the argument that we had
about the proper duration of the orders. It would not be right in that
context for the relevant applicant authority to keep coming back to
court to make that application. Can the Minister explain why the
requirement that there should be a change of circumstances affecting
the order should not apply equally to applications for variation made
by the relevant authority, as well as to those made by the individual
subject to the
order?
Mr.
Browne:
I just want to make a brief contribution because
new clause 2 is tabled in my name, and because it is a complicated
clause compared with others.
12
noon
At present
there is no obligation on the state to keep the circumstances of the
order under review. That obligation to apply for a discharge or a
variation order rests with the defendant. My enthusiasm is to try to
make the state more accountable for its actions by placing that burden
of keeping the order under assessment, and to ensure that if there is a
consideration of discharge or a variation to the order, it is obliged
to undertake that.
Mr.
Hogg:
I should like to make a number of specific points.
First, would the hon. Member for Taunton forgive me if I disagreed with
new clause 2? I do not think that it would always be the case that the
enforcement agency would know about a change in circumstances. In
general terms, the change of circumstances would be known, if not
exclusively, then largely to the person who is the subject of the
order. My feeling is that it would be unfair to place that obligation
on the enforcement agency unless it had particular notice of a change
of circumstances. To that extent, I do not agree with the hon.
Gentleman, although I understand and agree with the overall motives of
what he is describing.
I should like to make three
specific points. First, I have some difficulty in understanding the
real purpose of clause 18: whether it is designed primarily to make
current orders more onerous, or less onerous. When one looks at clause
18(1), the criteria to which the courts have regard, it is not plain
from those what the over-arching purpose is.
My second point builds on the
point made by my hon. Friend the Member for Rugby and Kenilworth. He is
entirely right that there is an imbalance here between the enforcement
agency and the person who is the subject of the order. The agency does
not have to establish any change of circumstance and, as my hon. Friend
says, it can make the order more onerous even if there has been no
change of circumstance. That is the effect of clause 18(8). However,
the person who is the subject of the order has to demonstrate a change
of circumstance. I do not like that imbalance because I see no reason
in principle why there should be an imbalance. The consequence, as my
hon. Friend rightly said, is that the enforcement agencies can simply
go back and seek to improve on the condition of the order from its
perspective, even if the omission was through their own fault in the
first place. I do not like that one little
bit.
Finally, if the
change of circumstance justifies an application by the person who is
the subject of the order, what are the criteria to which the court
should address itself when determining whether or not to make the
variation order? I am making absolutely no complaint as to the fact
that amendment No. 114 was not selected; decisions have to be made. At
least in that amendment, I tried to set out the criteria, which at the
moment do not exist at all in the Bill.
I have two questions to put to
the Minister. First, what is the primary purpose of clause 18?
Secondly, what are the criteria to which a court should have regard
when it considers an application to vary made by the subject of an
order on the grounds of changing circumstances? The Committee requires
answers to those questions.
The
Chairman:
Order. It is probably just as well for the
record to point out that amendment No. 114 was selected and it was,
indeed, debated with amendment No. 104 to clause
10.
Mr.
Coaker:
I am glad that you mentioned amendment No. 104,
Mr. Bercow, because I was wondering what happened to
it.
The purpose of
clause 18 is to ensure that an order can be varied so that it can be
kept proportionate and reasonable by the applicant authority. I shall
come back to the points made by the hon. Member for Rugby and
Kenilworth and his right hon. and learned Friend, but the clause gives
the option to vary an order to either the subject or the applicant
authority. When either is significantly adversely affected, they may go
back to the High Court and say, subject to conditions being met, that
the order should be varied. The purpose is to bring proportionality and
reasonableness to the
Bill.
On the point
made by the hon. Member for Rugby and Kenilworth, the applicant
authority is given the freedom to go back to the Court without having
to specify a change of circumstance to ensure that an order is not left
in place if it becomes disproportionate or inappropriate. The subjects
of orders are restricted from making similar applications to prevent
them from overloading the courts with repeated and baseless
representations about changes of circumstance. We have differentiated
the authority that has applied for and been granted an order to ensure
that such authorities have the power to change orders should it come to
their attention that that is appropriate. The different stipulations
for respondents are made because we do not want them continually to
make erroneous or spurious applications or to overload the
Court.
Jeremy
Wright:
The Minister said that the variation provisions
were available to ensure that authorities could return to the court if
a particular facet of an order became disproportionate or
inappropriate. If that is the case, an order would become
disproportionate or inappropriate as a result of a change of
circumstances. I am not clear as to why a change of circumstances
should not be a requirement for an authority that goes back to the
Court to ask for a variation of an
order.
Mr.
Coaker:
As I said, the applicant authority must be given
an unfettered right to apply for the variation of an order to ensure
that the order remains proportionate and appropriate. The distinction
is—I am repeating myself—that a respondent may not go
back to the High Court without specifying a change in circumstances.
Without that requirement, people might continually go back to the Court
with what we might term erroneous, insignificant or unimportant changes
of circumstance.
Jeremy
Wright:
I shall put it to the Minister another way because
what he is saying presents a difficulty. We shall not argue again about
whether the orders are penalties, but there can be no disagreement that
they
can have severe implications. Given the severity of the orders, is it
not important that the person affected has certainty? They will never
have that certainty if the relevant authority is permitted to go back
to ask for a variation without there having been a change of
circumstance, including a variation that would make the requirements of
an order yet more
onerous.
Mr.
Coaker:
Again, the Government have made the right
distinction in the Bill, but the hon. Gentleman is arguing against it,
albeit reasonably. At the end of the day, whether or not the court had
to take account of a change of circumstances, if the applicant
authority was making it more onerous, it would still have to
demonstrate to the court what it intended to do and make its request to
the court in a way that was reasonable and proportionate and to the
satisfaction of the court. That is the safeguard. It is not necessary
for the applicant authority to have the restriction that we have placed
with respect to the respondent; in the end, the arbiter will still be
the court. It will be the court that makes the
judgment.
It is a
different situation with respect to the respondent, because there is a
different purpose. We are trying to ensure that we do not get a huge
number of baseless applications, while retaining the right of a
respondent to try to get an order varied if there is a significant
change of circumstance which they believe the court should take into
account.
Clause 18
provides an important power for the court to make variations to an
order when appropriate. As I have said several times, the orders will
not be used for anything other than to prevent involvement in serious
crime, so when there has been a change in circumstances from when the
order was made, which means that the terms of the order are no longer
appropriate, an application can be made to the High Court under clause
18 to vary it.
I must resist
the new clause as it is unnecessary and undesirable and would place an
obligation on the relevant applicant authority that it could not
possibly fulfil. To answer the point made by the right hon. and learned
Member for Sleaford and North Hykeham, how is the applicant authority
to know and hence inform the High Court, of every change in
circumstance that occurs, which would potentially give the subject of
the order the right to apply for variation or discharge?
The orders will most often be
part of law enforcement efforts to manage serious career criminals for
their lifetime. However, it does not mean that they will be under
observation for 24 hours a day. It remains the case that the person
most likely to know of a relevant change of circumstances, which would
occasion the right to apply for a variation or discharge, is the
subject of the order
himself.
We need to
think about the practicalities, and what the change in circumstances
could possibly be. For example, what about the condition to use only
one mobile phone to prevent the use of clean and dirty phones? The
subject may take legitimate employment, which requires the use of a
work mobile and makes the order unreasonable without variation. How
would the applicant authority know of that? We have provided extensive
rights for the subject of an order and third parties to apply for
variation and discharge of the
order, which reflects the practical realities of how the orders will
work and achieves the aim of the hon. Member for Taunton in tabling the
new clause: that there is a means of ensuring that the terms of an
order are maintained in a reasonable
way. In answer to the
right hon. and learned Gentleman, the purpose of the clause is to try
to ensure that when in place the orders are kept proportionate and
reasonable, hence the desire to allow people to apply to vary them
should there be a change of circumstances. Clause 18 provides an
effective protection, which will mean that the terms of the order are
appropriate.
For
those reasons, I hope that the hon. Member for Taunton will seek to
withdraw the new clause.
Mr.
Browne:
I want to respond to a couple of points about the
new clause, and I understand the concerns that were expressed. My
proposal does not exclude the defendant from applying for a variation,
but it also puts a burden on the authority in that regard.
The orders have very severe
penalties, which may restrict a person going to their own home, their
working arrangements and their travel within the United Kingdom or
abroad, and the authorities should know if the circumstances of a
person who has had such restrictions imposed on their liberty change
substantially. As the hon. Member for Vale of Clwyd said, we are not
talking about people who have stolen a Mars bar, but about really
serious criminals.
The Minister estimates that
about 30 people would be subject to these control orders in any given
year. They are serious criminals, as the hon. Member for Vale of Clwyd
pointed out. Very small numbers of very serious criminals will have all
their liberties restricted, short of being sent to prison. In those
circumstances it is not unreasonable for the authorities to have an
idea about whether their circumstances have changed. Furthermore, if it
means that the police are more guarded about using these powers in all
but the most extreme circumstances, that is no bad thing
either. For those reasons, I am keen to push the new clause to
a
vote.
12.15
pm
Question put and agreed to
Clause
18
ordered to stand part of the
Bill.
The
Chairman:
The hon. Member for Taunton indicated that he
would like to divide the Committee on the subject of new clause 2. That
division will be taken when we reach the relevant point in our
consideration of the
Bill.
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