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The noble Baroness said: I shall speak also to Amendments Nos. 52 to 59. We are now referring to Clause 5 because the first amendment is in a sense a paving amendment to refer to the issues in Clause 5. We have already considered the fact that Clause 5 gives examples of what may be the prohibitions, restrictions and requirements imposed by an order. My amendments would convert those examples of what the courts can do into a finite list which would say, “These are the things you can require people to do, but you cannot in the future just make up your mind to add anything else”. The Government are always careful to describe ASBOs, control orders and now serious crime prevention orders as preventive rather than punitive, and we have had long debates on that in relation to earlier amendments. Earlier today, for example, the Minister said that a restriction on international travel would be what I believe she called a “preventer” against international crime. My noble and learned friend Lord Mayhew of Twysden pointed out in the same debate that what one has to look at is the effect of an action—not what you call it, but its effect.

Members on these Benches have a problem with the Government’s insistence that these are preventive measures. We are not convinced. An order does not become preventive just because one calls it that. Further, the examples listed in Clause 5 certainly have

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the ring of punishment about them. As the briefing from the Criminal Bar Association sent to noble Lords today points out, the consequences of serious crime prevention orders are highly punitive. The noble Baroness has said that they would become punitive only on breach. The Committee will have to decide whether it is punitive before that stage because Clause 5 provides an extensive, non-exhaustive list of prohibitions, restrictions and requirements that the order could impose.

When asking the Public Bill Office’s assistance in drafting the text of this amendment—as ever, I thank the staff for their exhaustive work on my behalf—I started from the premise that I heartily dislike legislation by examples. It lacks the clarity and certainty that we expect, and have a right to expect, from legislation. It is important that the Government should be asked to justify why they have chosen this method of giving examples, why they rejected other methods of drafting the clause and why they need to list the prohibitions merely as examples—what else could be added that could possibly be appropriate and proportionate?

I shall briefly mention the text of the amendments. Amendment No. 8 simply amends Clause 1 so that the powers of the court in imposing an order are subject to Clause 5 in addition to Clauses 6 to 15—they are all consequently designated as safeguards. That makes it possible for us to convert the examples in Clause 5 into the finite list, and Amendments Nos. 52 to 59 do just that. I beg to move.

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Lord Thomas of Gresford: We on these Benches wholly support the amendment. The use of the expression “examples” introduces an entirely vague concept, and the net result of Clause 1 as it stands in relation to Clause 5 is that it gives the judge complete control over any type of restriction, requirement or prohibition that he chooses to impose. That is not right. I have the highest regard for High Court judges, of course, but it is not right to give such power over the individual to a judge in such circumstances. Then there are simply set out examples, which of course include house arrest—the Minister looks upset at that, but why doesn’t she face it? It is house arrest to restrict the use of any premises by an individual and to restrict an individual’s travel. This provision can be used in that way in what a judge thinks is an appropriate case. If the Minister does not like emotive expressions, I am sorry, but that is what it means.

Baroness Scotland of Asthal: I am concerned by the noble Lord’s insistence on “house arrest” because the Committee knows that the courts of our country will not allow that to occur, as house arrest would be disproportionate. Indeed, it would be argued that it was an improper infringement on the liberty of the individual and contrary to the provisions of the Human Rights Act.

We currently restrict a whole series of individuals’ activities. The noble Lord, Lord Thomas, mentioned one earlier: we restrict, with propriety, the activities of

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known paedophiles, who are on a register. We require them to live at a certain address and comply with certain conditions because it is necessary so to do for the prevention of injury to others, particularly children. It is not suggested that that interference with liberty is disproportionate to the risk and danger that they pose, and I do not believe that any of us could, with propriety, refer to that as “house arrest”. If it were, we would have to derogate from the Human Rights Act, which we do not intend to do.

Lord Thomas of Gresford: With the greatest respect to the Minister, we know that control orders restrict people to their houses. People are kept with their families in a flat and are not allowed to move outside it. That is house arrest. We have it already, under legislation passed by this Government. This provision is a further extension of the possibility of house arrest.

The Minister refers to paedophiles, because they are the demons in our society. The Bill does not require that it be proved beyond reasonable doubt, so she told us only an hour or two ago, that they are paedophiles for house arrest to be imposed. That is the authoritarian nature of this Bill, which we keep coming back to.

Baroness Scotland of Asthal: I do not think that it will advantage the Committee for us to rerun our debate, which lasted over an hour. Perhaps I can import into this debate the comments that I made in the last; it may assist the Committee if we deal with it in that way.

I turn to the amendment of the noble Baroness, Lady Anelay. She invites us to turn the list in Clause 5 into an exhaustive one. I pray in aid the comments that I made on the two previous amendments about flexibility and the need for acuity in crafting conditions that go to the root and the nature of the individual criminal activity that these orders are designed to prevent. On each occasion, they will differ: the way in which one frames order A will differ from the way in which one frames order B. Any terms imposed by an order would have to be compatible with the convention rights, as required by the Human Rights Act 1998.

The provisions are also subject to numerous safeguards in Clauses 6 to 15. For example, Clause 11 provides that a person does not have to give oral answers to questions. The flexibility in Clause 5 allows a targeted order to deal with particular circumstances.

With regard to the examples that we gave earlier, a business could be involved in obtaining mailshots. People are invited to participate in a competition that is not real. In practice, the prizes that are offered do not exist or, if they are offered, are worthless. There is no commercial rationale for the operation; its sole purpose—obtaining the mailshots—is to identify likely future candidates for advanced fee fraud. If the perpetrator then sells or obtains a mailshot elsewhere, the law enforcement officer can apply for a prevention order prohibiting that individual from engaging in any activity involving large-scale mailshots.

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We know that scams of this nature are taking place up and down our country; while many of them are perpetrated by individuals who are not in this jurisdiction, the mailshots take place here. There have been tragic cases of individuals who have lost their entire life savings as a result. As a preventive measure, it would be important to target the serious organised crime, in that instance by obtaining an order to disable that particular individual from appropriating money in that way. The irony is that, had we given no example of the nature of the activity that we wish to interdict, it could have been said that this is even broader, but we have tried to give the framework within which these orders should be set. However, we do not propose that they should be exhaustive.

I know that the noble Baroness is a practical individual; she always looks to see what the mischief is and how to frame the response to deal with it. I am confident that neither she nor Members of the Committee would like to disable the court from responding in a proportionate way that was likely to interdict crime that is serious and so invidious and detrimental to the citizens of this country. That is why we have done it in that way; we hope that the framework gives a proper balance between the acuity and the flexibility that one needs. I hope that, given that explanation, the noble Baroness will be slightly happier than she was before I responded.

Baroness Carnegy of Lour: I am getting more and more sympathetic to the Minister personally in her struggle to explain why the Bill is necessary. She has convinced me of the need for something that can be targeted in these cases. I do not go along with what we are being told by Liberal Democrat Members that, because the Bill is vague, we cannot have anything. I do not think that that is the case. But it is extraordinarily vague to leave to a judge of the High Court a decision about how to push this or that person about, Parliament not having agreed that that could happen. That is what we have got. The examples do not include parameters. That is the trouble and that is what my noble friend is trying to say.

It is Parliament’s duty to ensure that the courts do what it decides and do not do what it does not decide. That is what we are here for, as I understand it, and I have always thought that it was an important and noble role. But it is not our job to say that we need any sort of an order to be possible because the variety of needs will be so great, and that we must let the judges decide everything. That is the trouble. I think that that is what Liberty is saying to us. That organisation has written an extraordinary document and to my mind has taken a lot of trouble to point out what the problems are from the point of view of lawyers. The ordinary citizen wants to know that Parliament is giving judges parameters, but there are none in this case.

Baroness Scotland of Asthal: I absolutely understand the nature of the concerns of the noble Baroness, Lady Carnegy of Lour, and thank her for her sympathy. But we have the examples in the Bill to try to do what the noble Baroness suggests—set the parameters. We

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are fortunate because the High Court of Justice in our country has, in its inherent jurisdiction, long experience of doing this sort of thing. For example, in wardship, the High Court can do anything to protect a minor from the wrongful removal from a jurisdiction or from harm. In the recent Children Act 2004, we retain—I think in Section 100—the ability to make an order in wardship if all else fails. We have entrusted in the inherent jurisdiction of the High Court the ability for a High Court judge to make proportionate orders that seem to be right in the circumstances of that particular case.

So this is not by any means unknown, albeit the noble Baroness is right that in more recent legislation we have tried to set out clear boundaries within which the court should operate and clear rules about how they should apply the tests that we have given them. That is why we have provided the tests in Clause 1 and the parameters which we have just been discussing in this amendment. In terms of proportionality, we also have the Human Rights Act 1998 as a further constraint on their operation. Of course, a court would not be able to make an order that was unreasonable or inconsistent with the Human Rights Act. If they did so, the Court of Appeal and/or the Judicial Committee of the House could strike down any such order. We know from our most recent jurisprudence that the court has been very vigorous in being guardians of the Human Rights Act and making sure that that which is done is compliant.

I understand the noble Baroness's concerns, but we believe that we have got the balance about right on this occasion. We must have a little flexibility. Otherwise, to put it colloquially, we will not be able to catch the pernicious crooks fairly.

Baroness Anelay of St Johns: I am grateful to my noble friend Lady Carnegy of Lour because she highlighted exactly my concern that it is a case of ensuring that there are parameters and that Parliament takes proper responsibility for setting the boundaries within which the judiciary then acts in specific cases. I am concerned that there is so much flexibility and lack of clarity that there could be problems. However, I agree entirely with what the Minister says. There are ways in which one can have safeguards in other parts of the Bill. Therefore, my paving amendment was purposely in Clause 1 because I accept the Minister's argument that Clause 1 of itself does impose on the courts parameters that set the scene before they get to Clause 5. I appreciate that I will always have to look at Clause 5 within the terms of what steps the court has had to go through before it reaches that.

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The noble Baroness and I are also at one in wanting to get at the pernicious people who may well be dealt with properly by some of the examples given in Clause 5. In particular, the noble Baroness mentioned the case of those who compile what are called “sucker lists”. They carry out mail shots that offer prizes that may not exist or, if they do, are

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worthless and when people reply, not only do they have to phone a premium-rate phone line, but their details go on to a sucker list which is sold on, as a big-business effort, not only to people in this country who exploit them, but also all around the world. Cases have been well set out in newspapers, particularly in the Sunday newspapers in the money pages, of vulnerable and elderly people—“vulnerable” and “elderly” do not necessarily go together—whose lives have been ruined by these people. The noble Baroness is always very good at presenting to us the hard case which would make us bite our tongues and accept the argument of the Government; “Oh, well, we’ll take what the Government propose because it could catch these serious criminals”.

I agree with the noble Baroness in everything, except that I need to look very carefully at the detail of Clause 5 and whether part of it towards the end may need to be amended to make it a little less flexible and to give it a little more clarity, without undermining its purpose. I shall consider that before Report stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 9 not moved.]

Lord Dholakia moved Amendment No. 10:

(a) be without prejudice to any criminal investigation; and (b) require that all appropriate lines of investigation shall be diligently pursued with a view to bringing a prosecution against the person for an offence relating to trafficking against persons.”

The noble Lord said: The press coverage surrounding the introduction of the Bill announced that serious organised crime prevention orders would be used to tackle human trafficking. The Minister mentioned human trafficking in her opening remarks when she spoke of why such orders are necessary.

We have no doubt whatever that human trafficking is a serious social evil, causing great human misery. However, we doubt the wisdom of relying simply on serious crime prevention orders as a means of tackling this horrendous crime. Instead of relying on these legal shortcuts, we believe that those who traffic human beings for exploitation should be prosecuted and, if convicted, punished. Criminal prosecutions and prison sentences for those found guilty of these serious offences would be a far more effective way of providing justice to victims—a visible deterrent against future trafficking and protection of the public. That is the approach taken in the trafficking convention, which requires states to put into place a range of trafficking offences and to ensure that cases are investigated and prosecuted effectively.

We are delighted that the UK has now put in place a range of trafficking offences and that it intends to give them extraterritorial effect. Enacting offences is not, however, enough; more can and must be done to facilitate criminal investigations and prosecutions. We are not, for example, aware of any prosecutions being pursued under the offence of trafficking for labour

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exploitation, enacted in 2004. One significant difficulty with prosecutions in that context is the immigration status of the victim. Victims may be unwilling to come forward to assist with an investigation for fear that they may be deported before they have had time to consider properly whether they are willing and able to help with a criminal prosecution; or may even be deported during the course of an investigation or prosecution with which they are actively assisting.

In the short term, the single most important factor that enables victims to make decisions, both about their future and whether to assist in a prosecution, is security. It is for that reason that the trafficking convention provides for reflection periods, limited residence rights and support for victims.

After much hesitation on this issue, it is now clear that the Government do not object to giving limited residence rights and reflection periods to trafficking victims. That is very welcome. We are delighted that, on 23 January, the Prime Minister announced that the UK would sign up to the trafficking convention and presumably give domestic legal effect to its provisions. The amendment is an attempt to probe the Government on this matter and to ask them whether they will introduce into UK law those provisions of the convention that are widely considered to be the most important to ensure that victims are willing and able to assist with criminal investigations and prosecutions of human trafficking. I look forward to the Minister's explanation on this matter. I beg to move.

Baroness Anelay of St Johns: There can be no doubt at all that trafficking is a great social evil. I am grateful to the noble Lord, Lord Dholakia, for bringing this matter forward in a separate amendment which highlights its importance. Research reveals that between 700,000 and 2 million women and children are trafficked across international borders every year; 60 per cent of illegal immigrants resident in this country arrived here illegally and the majority in the back of a lorry. The noble Baroness has already referred to the difficulty about investigating that and the fact that some lorries are built specifically to accommodate such human cargo. There were an estimated 4,000 victims of trafficking for prostitution in the United Kingdom during 2003 and we know that there were 30 convictions for trafficking offences between 2004 and 2006. To date, as the noble Lord, Lord Dholakia, has said, as far as we are aware, no convictions have been achieved for trafficking for labour exploitation.

This is a serious matter and one to which the House will return tomorrow during a debate on International Women's Day. My noble friend Lady Morris of Bolton will lead for us on that day. I know that she intends to look very carefully at these issues.

We are very glad that, after some hesitation, the Government agreed to sign up to the convention on trafficking—the European convention—and we hope that ratification will take place as soon as humanly possible. I would be grateful if the noble Baroness were able to give us some updated information on

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that. What progress has been made towards ratification? Perhaps she could comment on the results of her 2006 consultation paper, Tackling Human Trafficking, and the work undertaken by the Human Trafficking Centre, opened in Sheffield last October. I have a reason for asking those questions within the context of this very helpful amendment.

This morning, I heard on the radio a news item which said that in this year of commemorating—I hate to think of it as celebrating—the abolition of slavery, and slavery should never have happened in this country, the Metropolitan Police are launching a specialist trafficking team. I thought that sounded very helpful. I was already aware of Operation Maxim, which is the Metropolitan Police Service’s partnership with the UK Immigration Service, the Identity and Passport Service and the Crown Prosecution Service, targeting organised immigration crime across London. They specifically target human trafficking. I knew about that, but this appeared to be a new initiative.

Afterwards, I tried to find out the details and I went on the Metropolitan Police website and found nothing; I went on to the BBC information website—the BBC had put out the story—and found nothing; so I was becoming more and more confused. The story was repeated, so I knew the confusion was not in my head, thank goodness. I would be grateful to know whether the Minister has any information to assist the Committee on the remit of that trafficking team and how it might interact with SOCA. That will be important against the background of the briefing given to noble Lords last night. How would the roles of the team and SOCA differ or complement each other? Will the focus of the Metropolitan Police team be on seeking criminal prosecutions or on identifying those cases where it might be more appropriate to seek a serious crime prevention order?

I now do my elliptical loop and come back to my first comments about the scale of the trafficking problems in this country particularly and worldwide, and the comparative lack of success of prosecutions in the criminal courts and therefore the potential for the use of a serious crime prevention order in resolving some of the problems. The noble Baroness has argued that we should accept this new “tool”, as she calls it, because it could solve problems that we do not seem able to solve at the moment. There may be an argument in the case of trafficking that an order could be a useful tool. I still need to be persuaded but it is one of the areas where there could be a valid argument.

It is important that we know the status of the Government’s work with regard to trafficking and the ratification of the convention, as well as the status of the new trafficking team and how that is going to relate to SOCA. Is its main focus going to be on criminal prosecution or is it going to be moved away so that in the future it will focus on applying for a serious crime prevention order?

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