New Clause
5
Central
record of serious crime prevention
orders
‘A detailed central
record shall be kept of every order made, varied or discharged under
Part 1.’.
—[James
Brokenshire.]
Brought
up, and read the First
time.
James
Brokenshire:
I beg to move, That the clause be read a
Second time.
We seek
certain protections and assurances by virtue of this and other new
clauses that we that we would like to add to the Bill. New clause 5
imposes a requirement for serious crime prevention orders to be
recorded on a central register and for any order made to vary or
discharge such orders also to be recorded on that register. We believe
that that would be sensible, given the wide-ranging powers that the
Government seek to take in relation to the Bill.
The Committee will be aware of
the reservations that have been expressed by various hon. Members about
the serious crime prevention orders. We need to ensure that a clear
record is kept of how many of these orders are issued, given that only
around 30 of them are expected to be allowed each year. We also need to
monitor closely who is receiving the orders and what restrictions and
terms are being imposed as a
consequence.
As I have
said, concerns have been expressed about the practicalities of what
will happen if the orders are passed into law. Effective measures need
to be in place to ensure that the Bill is not applied in a way that
might subvert the criminal justice system. The Minister clearly said
that the Bill is intended to be about protection, not prosecution. In
other words, serious crime prevention orders are not intended to be an
alternative prosecution system. In that context there needs to be a
process to record and therefore to review how many orders are being
given and on what terms. The best way to do that is to ensure that the
orders are recorded in one place and so are readily available for that
review and examination. On that basis I hope that the Committee will be
minded to consider new clause 5
favourably.
Mr.
Coaker:
May I thank the hon. Member for Hornchurch and his
colleagues for tabling this new clause because it gives me the
opportunity to reiterate the commitment that was made by Lord Bassam in
another place? In order for truly effective use of these orders, there
will need to be a central record of appropriate information in relation
to their use, especially for co-ordination between different branches
of law enforcement and the different applicant authorities. In order
for the record to be an effective tool, there will need to be extensive
consultation with stakeholders to make sure that their needs are taken
into account. We will also need to consult with the judiciary and we
would want to ensure that any recording of the details of the operation
of these orders would be entirely in accordance with data protection
principles.
It would
be inappropriate to include such a general provision in the Bill
without having consulted those various bodies. If we are to come back
to this on
Report after the summer recess I hope to have completed this process of
consideration and to be able to inform the House of how this will be
done. In the light of the commitment to a record being kept that was
made in another place and now in this House, I hope that the hon.
Gentleman will understand why I will resist the amendment and why I
will ask him to consider its
withdrawal.
James
Brokenshire:
Can the Minister give any further details of
the consultation that is taking place? While his acknowledgment that
there is a need for a central register to be maintained is positive
news, it would be helpful for the Committee to understand what the
timing of the consultation is intended to be. He has mentioned certain
stakeholders. But we need to be certain that the matter will be
addressed by no later than Report stage to ensure that the protections
that he has described are properly reflected in the
Bill.
Mr.
Coaker:
I am trying to give the hon. Gentleman the
reassurance that he seeks. We need to consult with the various
stakeholders that I have mentioned. We want to bring something back on
Report that reflects the new clause but we need to do so in liaison and
consultation with our stakeholders. Given that the Report stage might
well be after the summer recess, the consultation will have to take
place in that period. That is our aim. The specifics of the
consultation will depend on the sort of central record that would be
appropriate. It should not be overly bureaucratic and should achieve
our aims and those of the hon. Gentleman. We commit to return to the
issue on Report. With those assurances, I hope that the hon. Gentleman
feels able to withdraw his—if I may say—useful new
clause.
James
Brokenshire:
In the light of the Minister’s helpful
and, if I may say, kindly comments, I beg to ask leave to withdraw the
motion.
Motion and
clause, by leave,
withdrawn.
New
Clause
6
Review
of serious crime prevention
orders
‘(1) The Secretary of
State must appoint a person (“the independent reviewer”)
to conduct an independent review of the operation of this
Part.
(2) In conducting a
review under subsection (1) above the independent reviewer shall have
regard to the desirability of minimising the use of serious crime
prevention orders except where they are necessary to protect the public
by preventing, restricting or disrupting involvement in serious crime
in circumstances where prosecutions cannot otherwise be
pursued.
(3) The independent
reviewer must send the Secretary of State a report on the outcome of a
review under subsection (1) before the end of a period of 12 months
beginning with the day on which this Act is passed, and before the end
of each subsequent period of 12 months beginning with the day on which
the first report was sent to the Secretary of
State.
(4) The Secretary of
State must lay before Parliament a copy of each report received under
subsection (3) above.’.—[James
Brokenshire.]
Brought
up, and read the First time.
James
Brokenshire:
I beg to move, That the clause be read a
Second time.
In the
light of the Minister’s helpful comments on new clause 5, I hope
that he will be as favourable to new clause 6, which relates to the
review of serious crime prevention orders. The new clause would provide
for an annual review of the orders. It is important that the mechanism
exists to ensure that the orders are used proportionately and to
provide reassurance that they will not become some sort of automatic
substitution mechanism to bring prosecutions before the court in a
different manner.
The
Minister said that only a small number of orders—about
30—are expected each year. The new clause would allow the annual
review of the number of orders to be independent. We have heard some
significant, passionate concerns about what serious crime prevention
orders will mean in the context of the criminal justice system. If the
orders are to exist, they must be used in a way that promotes
co-ordination between all law enforcement agencies, to provide the
protection that the Minister said he intends to be part and parcel of
the measures.
It is
important to have a 12-monthly review, so that we can regularly examine
the operation of the orders. It is easy in the Committee to look at the
drafting of the Bill and say that the orders will be applied in a
particular way. We are concerned about their practical operation and
application, however. To provide reassurance as these matters proceed,
it is therefore important to have such protection and to ensure that an
independent reviewer is able to conduct analysis of the operation of
the serious crime prevention orders, with regard to the desirability of
minimising their use except where they are necessary to protect the
public by preventing, restricting or disrupting involvement in serious
crime in circumstances where prosecutions cannot be pursued. The
Minister has said that that is the intention of the serious crime
prevention orders. If that is the case, what can be wrong with an
independent mechanism to ensure that that is what happens in practice?
I hope that the Minister will consider the new clause favourably and,
perhaps,
kindly.
Mr.
Coaker:
I advise the hon. Gentleman not to get too carried
away. The powers under the Bill will be exercised by the High Court. To
say that it needs an independent reviewer to review its actions is
inappropriate. I am more than confident in the ability of our senior
judiciary to act appropriately. I also think that the amendment is
unnecessary.
12
noon
The purpose
of such a reviewer, presumably, would be to ensure that the orders were
being used in a way that was compatible with overriding imperatives,
such as the European convention on human rights. I have full confidence
that the High Court would always seek to act in such a way, and if the
subject felt that it had not, there is already a perfectly suitable
process for review of the decision: appeal to the Court of Appeal,
followed by the House of Lords.
In addition,
we have stated clearly several times that the orders will not be used
as an alternative to prosecution—a suggestion alluded to in new
clause
6(2). To underline that commitment, I point out that in no way can it be
argued that the orders will be easy to obtain. Earlier in our
deliberations, we went through, at some length, the various tests that
are necessary before the High Court can make someone the subject of a
serious crime prevention order. That is just as it should be, and it
will mean that law enforcement bodies cannot use the orders as an easy
alternative to prosecution. I ask the Committee not to support the
creation of an expensive review process that would achieve nothing that
the Bill and the existing judicial processes do not already
achieve. Although I do
not support the notion of an expensive review of the orders that would
achieve nothing that is not already provided for, we might consider
before Report whether there is a way of combining the recording of
information, which I have said that we will do, with some sort of
reports deriving from that. I am not committing to doing that, but I am
happy to consider doing so and to offer a commitment to return to this
issue on
Report.
James
Brokenshire:
I hear what the Minister says, but I think
that, in many ways, he has missed the point. The new clause is not
about questioning whether the judiciary would act appropriately or
inappropriately; they will interpret the Bill as it is stated. The
point is that there is some element of doubt about how the Bill could
be interpreted, which means that they could go off in a different
direction—hence the extensive debates that we have had on
various aspects of the serious crime prevention orders.
The Minister also talked about
the ease with which the orders will be obtained. We have had
considerable debate on the burden and standard of proof that will be
applied in relation to the orders, on whether there will be one test,
and on where on the sliding scale such cases will be. That is clearly a
matter for judicial interpretation and judgment, but it could be that
the characteristics of the orders are slightly different from the way
that they are expressed in the Bill. That is how the law emerges and
develops. It has nothing to do with the appropriateness of the
judiciary’s actions—they would be doing their job and
interpreting the statute before us.
The point is that an
independent review would ensure that the expressions of general intent
were applied, and that we would proceed with that safeguard if it was
possible to obtain a criminal prosecution. Any movement towards using
the serious crime prevention orders in a way that detracts from the
criminal justice process should be clearly understood and reported to
Parliament as part of the review process proposed in new clause 6. On
that basis, I am not satisfied by what the Minister has said and I
would therefore like to test the Committee’s opinion of new
clause 6.
Question
put, That the clause be read a Second
time:—
The
Committee divided: Ayes 4, Noes
9.
Division
No.
27
]
Question
accordingly negatived.
New Clause
7
Limitation
of serious crime prevention
orders
‘(1) Part 1 of this
Act and any orders made under it shall expire at the end of the period
of 12 months beginning with the day on which this Act is passed unless
the Secretary of State makes a renewal order under subsection (2)
below.
(2) No renewal order may
be made by the Secretary of State unless it has been laid before, and
approved by a resolution of, each House of
Parliament.
(3) A renewal order
made under subsection (2) above shall expire at the end of the period
of 12 months beginning with the day on which the order is made unless
it is renewed by a further renewal
order.
(4) No order may be made
under this section unless a report has been laid before Parliament
under section [Review of serious crime prevention orders]
above.’.—[James
Brokenshire.]
Brought
up, and read the First
time.
James
Brokenshire:
I beg to move, That the clause be read a
Second time.
New
clause 7 is a further protection that we seek regarding the operation
of serious crime prevention orders. Under it, part 1 of the Bill, once
enacted, would subject to annual renewal by order. This is a
wide-ranging provision that could be quite significant, given the
restrictions on the orders that may be placed. That may or may not be
appropriate, but if this power is to be taken, there should be an
obligation on Parliament to consider the operation of such orders, for
the reasons that I gave in relation to new clauses 5 and 6.
I do not intend to repeat what
I said about new clauses 5 and 6. However, new clause 7 would give a
great deal of assurance regarding the various concerns expressed in the
other place, outside the House and in this Committee. It would also
give a positive role to Parliament in applying a robust examination of
the operation of these orders, and provide an element of scrutiny of
the manner in which serious crime prevention orders are being
undertaken. One would have thought that that might find favour with the
Prime Minister, given his views on strengthening the role of Parliament
and on the functions of the Executive.
I urge the Committee to
consider new clause 7 carefully. If the concerns expressed in this
place and elsewhere regarding the manner in which the serious crime
prevention orders operate prove to be the stronger argument, it would
provide an additional protection and a mechanism for ensuring that
changes can be made if
required.
Mr.
Coaker:
Through the Committee’s deliberations, we
have taken on board, not only in this place but in another place,
points that the hon. Member for Hornchurch
and his hon. Friends have made. There is clearly a difference of view on
this new clause, and I do not want to repeat the arguments that I made
regarding the last new clause—arguments that the hon. Gentleman
found so unpersuasive, although many of the same points could indeed be
made. Processes are in place regarding the operation of the judiciary,
and although the hon. Gentleman does not agree, they provide the
safeguard that he is seeking. Our view is that these orders will help
law enforcement and prevent harm caused to communities by serious
criminals. We believe that the safeguards, both legislative and
procedural, provided by these orders are quite considerable. It is not
appropriate to keep asking Parliament to reaffirm the House’s
commitment to preventing, through the measures in the Bill, the harm
caused by serious crime. I therefore ask the Committee to resist the
new clause if the hon. Gentleman presses it to a
vote.
James
Brokenshire:
I hear what the Minister has said but,
needless to say, he will not be too surprised to learn that I am not
satisfied by his response. He says that it is a question of ensuring
that Parliament sends out a message about harm reduction, but that is
not the point at issue. The issue is the extent to which the orders
might go much further and tread on the remit of the criminal justice
and prosecution sphere. That is why we believe, given the points that
have been made about the operation of such orders, that the safeguards
in new clause 7 are required. On that basis, I would like to test the
Committee’s opinion on it.
Question put, That the
clause be read a Second
time:—
The
Committee divided: Ayes 4, Noes
9.
Division
No.
28
]
Question
accordingly negatived.
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