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The Bill is drafted as it is—with no mental element included in the court's consideration of whether a person has facilitated serious crime or has acted in a way that was likely to facilitate it—for this reason. It is expressly stated in Clause 1 that the orders will be granted by the court only when they will prevent the
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In that context, there will be instances when the need to prevent this considerable harm will mean that an order would be appropriate where it would be almost impossible to show the suggested element of intention or recklessness; for example, where a person who owns a string of lodging houses that have been found on several occasions to contain individuals who have been trafficked or smuggled, with the accommodation paid for by others. A first option for law enforcement might be to approach the owner and make him aware of the problem. But when it continued to happen he could potentially successfully argue that he had no knowledge that these people were being trafficked or smuggled, and so could not have the requisite element of intention. Similarly, with a large number of people coming and going, he could argue that he had neither the ability nor the time to check closely each person. In such a situation, it would be difficult to prove an element of recklessness if the person could argue that he had no means of checking whether the person was or was not an illegal immigrant. Therefore, an order which required the owner to provide law enforcement for a limited period with a list of those staying in the houses, or where people’s stay was paid for by a third party, would be a reasonable and proportionate response to prevent those houses being used as stepping stones on the way to people trafficking.
It is sad to reflect that there are those who simply do not care for what purpose their property or services are used. In those circumstances it must be right to assist the prevention of crime by imposing on them a reasonable and proportionate contribution to making sure that these offences are not committed again.
Secondly, it would be inappropriate to import into a civil order concepts of intention and recklessness, which are essentially criminal in nature. Finally, and perhaps most importantly, Amendments Nos. 42 and 45 in particular, but also all the other amendments in the grouping, should be looked at in the context of Clause 4(2)(a) and (3)(a), which the Committee debated on the previous occasion. They provide that any action which the potential subject of the order can show was reasonable cannot constitute either facilitating, or acting in a way which was likely to facilitate, serious crime for the purposes of this legislation. This provides a very strong safeguard to ensure that those who act reasonably can never be the subject of an order.
The noble Baroness properly raises the issue of those who may lack capacity and may not be able to understand. That is why we come back to the reasonableness issue. I am sure that these issues would be raised. If the authority bringing the order did not have the sense to do that, I am relatively confident that the judiciary would. We need to think about how these orders would be used. There is a high threshold for the authority to meet. We and they would prefer to work with individuals on a consensual basis
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For those reasons we do not think that the changes that the noble Baroness seeks are necessary. Because we did not think that they were necessary we did not consult the mental health charities. The noble Baroness will know that if the measure did have an impact we would have done so. We hope that the noble Lord and the noble Baroness will be satisfied and agree with us that the way in which the measure is structured provides the safeguards that both they and we wish to see.
Baroness Carnegy of Lour: May I—
Baroness Anelay of St Johns: Before my noble friend intervenes, it might assist the Committee if the Minister addressed the question that I asked about precedent in other legislation for a court being required to ignore a person’s mental state. If she does not have the answer to hand, I hope that she will address it so that my noble friends can hear the answer.
Baroness Scotland of Asthal: I shall certainly do that. What is slightly different is that we are seeking to deal with the issue by making a civil order. The noble Baroness will know that it would be very unusual to find any civil order containing the provisions to which she referred. They are normally properly found in the criminal jurisdiction. We debated whether it was appropriate to have these orders in the civil framework. We argued very strongly that it was and that they constituted an appropriate preventive measure. However, I shall certainly write to the noble Baroness if we find any similar provisions which deal with this matter in either the civil or, indeed, the criminal sphere.
Baroness Carnegy of Lour: It is quite difficult for a lay person to follow the rather complicated argument that the noble Baroness has had to deploy on the amendments. As I read it, in deciding for the purposes of this part whether a person facilitates the commission by another person of a serious offence,
That is a very strange thing to say. A mental state can be being agitated, having a headache, or being tired, like I am. After trooping through the Lobbies, my mental state is rather strange at the moment. It seems to me that there must be more clarity than that. My noble friend has asked whether the phrase appears in any other legislation. Whether it does or not, I do not think it says anything clear at all. As it is something that must be ignored, it surely must be made clearer.
Baroness Scotland of Asthal: The reference to “mental state” is a reference to intention. We are saying that you do not need to intend the consequence of that which is sought. I am happy to write to the noble Baroness and have the letter copied to Members of the Committee setting out the examples of how we should do this.
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I tried to give the example of the person who has a lodging house who simply says, “I will not do anything at all to assist in relation to these people who you assert are being trafficked”, where the intelligence is that their property is being used, perhaps almost exclusively, for the trafficking of people, and they have been asked about that, and they do not concur that they should do anything about it. It would be very difficult in law to prove that in their refusing to assist their intention was to facilitate trafficking; their intention may simply be to garner as much money as they possibly can. That would put us in difficulty if intention had to be demonstrated.
In those circumstances, it would be reasonable, fair and just for the court to conclude that, to prevent that activity continuing, there should be an order to restrain them from doing certain things or asking them to provide information on the people who came to their property, perhaps when it was paid for by an unknown third party. That would enable us to interdict the criminal offending that is so offensive. That is why the intention is not there in the way that one would normally have it. As I said earlier, in addition to intention, “mental state” includes, for example, knowledge or recklessness. You would not have to show that the person knew that the sole purpose of rooms being rented was so that people could be trafficked through them. That is why we think it would be proper not to consider those things but to look at the acts that were complained about. I am happy to write, I hope clearly, to the noble Baronesses, Lady Carnegy and Lady Anelay, if that would assist.
Lord Mayhew of Twysden: That has been a very helpful explanation, and equally a very helpful intervention by my noble friend Lady Carnegy, because there is scope for the Government to consider the extraordinary width of the words,
I understand exactly what the noble Baroness has just said, but what about a state of shock? What about where someone is unable to form any intention for some reason? That can perfectly well be argued to be a condition of his mental state. I would ask that this be looked at to see whether there can be some narrowing down in a practical way. I hope that the noble Baroness might look favourably on that request.
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Baroness Scotland of Asthal: We think that those issues are covered by the reasonableness provision. In relation to the acts complained of, the defence is very clear. The Bill provides that a person has been involved in serious crime if he,
- “has conducted himself in a way that is likely to facilitate the commission by himself or another person of a serious offence”.
The issue is set out clearly. The reasonableness provision covers the issue that the noble and learned Lord has identified. The court would have to be satisfied that the reasons put forward by the individual were not reasonable. All the issues mentioned by the noble Baronesses, Lady Anelay and
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Lord Thomas of Gresford: The Minister talks in reasonable terms, and I am sure that she fully appreciates the nature of what she is doing. She is asking the High Court to make an order if it is satisfied that a person has been involved in serious crime—there must be a finding of involvement. If that is the case, the order may contain the prohibitions, restrictions or requirements such as those that we have previously discussed in Committee. The clause does not require any intention, knowledge or anything else; therefore, not only does it remove altogether what used to be called mens rea, a guilty mind, from the concept of involvement in serious crime but it imposes on the defendant to an application the burden of proving that what he has done is reasonable. So there is a reverse burden of proof and no test of mental state, yet—I know that the noble Baroness does not like this point, because we have had this conflict previously—a person can be put under house arrest under the terms of an order made under this clause. Without knowledge, intention or any mental state at all, and subject to you yourself proving that what you have done is reasonable, you can be targeted by a High Court as a person involved in serious crime. The whole clause is ludicrous.
Baroness Anelay of St Johns: I am grateful to all noble Lords who have tried to assist me in untangling what remains a difficult part of the Bill. As the noble Lord, Lord Thomas of Gresford, said, this amendment addresses a serious change, because one would be saying to the court that intent did not matter. Reasonableness would be addressed first, but intent must not be taken into account. As I said earlier, having heard the Minister’s argument last week about dispatch with intent, I am prepared to consider that as perhaps an appropriate approach. However, if I am to accept that, I must be assured that the Bill will be so watertight and clear in its construction that the decisions by the High Court would be appropriate. In this clause we are imposing on the High Court a difficult task; in fact, throughout this part of the Bill, courts are perhaps asked to do things that one would not normally ask. It has been said previously how wonderful they all are, but it is not for Parliament to give them impossible tasks.
I hear exactly what the Minister said; she thinks, first, that there should be a general test of reasonableness—there must be a proportionate response. However, the tenor of her argument is that that provision overrides some individual rights. The noble Baroness says no, but she was arguing that there must be a reasonable and proportionate response to prevent the further commission of an offence or to prevent any offence, because some people have not been shown to have committed any offence in the
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I may not want to return to Amendments Nos. 42 and 45, but I am still concerned about Amendments Nos. 43 and 46, which specifically address the other aspect of a person’s mental state at the time. The Minister very carefully said to the Committee that reference to mental state is a reference to intention; but later, in a further explanation, she expanded that by saying that it also covers knowledge and recklessness. However, that is not apparent at the moment. Because this is new in construct and it is a civil burden of proof, I should like to look at it carefully between now and Report. I should certainly also be grateful if I could discuss it at a meeting with the noble Baroness. Because this issue has not been thought appropriate for consultation—perhaps for very good reasons—it is right that I talk to the organisations that represent at their core those with learning difficulties or mental health problems so that they can be reassured. I give way to the noble Lord, Lord Thomas.
Lord Thomas of Gresford: Before the noble Baroness decides what to do with her amendment, perhaps I may clarify one point. It is for the court to ignore knowledge or lack of knowledge, to ignore the lack of intent and to ignore the lack of recklessness. A person may be going about his business in a state of mind in which he believes that he is acting perfectly properly, and the burden is on him to show that what he is doing is reasonable; otherwise, he is liable to be subjected to one of these orders.
Baroness Anelay of St Johns: The noble Lord, Lord Thomas of Gresford, is absolutely right. Of course, on the previous occasion, the noble Baroness proposed that, when a trader was carrying on a business, the police could go along and say, “Do you realise that the way in which you’re doing this is assisting serious crime?”. The person would then have the chance to say, “Well, I won’t do it any more”, or he could proceed and find himself subject to an application for an order.
Like the noble Lord, Lord Thomas of Gresford, I suspect, I do not want a person who has no intent and who does not wish to facilitate crime unwittingly to be caught out by this measure. That is what I want to try to achieve through discussion with the Minister between now and Report. At the moment, I still think that a person with normal good business practice could find himself in difficulty in court when, by the look of it, neither the Government nor I wish that to happen. The noble Baroness has said repeatedly that she does not want honest traders to be nabbed but I think that this does nab them. So I am still concerned, but I am particularly concerned about those who would not be able to form intent anyway. Therefore, I tabled my secondary amendments, Amendments
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I think that I have outlined my concerns as a sufficient basis for bringing this matter back on Report, although I hope for a more constructive resolution at that stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 43 to 46 not moved.]
Baroness Anelay of St Johns moved Amendment No. 47:
The noble Baroness said: I shall speak also to Amendment No. 129. Amendment No. 47 would remove the Secretary of State’s power to amend Schedule 1 by order. If he wished to vary the list of serious crimes in Schedule 1, he would therefore have to be directly accountable to Parliament by bringing forward primary legislation.
Schedule 1 lists the range of offences to be treated as serious crimes. Some, such as people-trafficking, drugs, arms-trafficking and money-laundering, are easily recognisable, but it is more difficult to see others as coming within that range. Our concern is that the Government may bring forward a curate’s egg of an order: a long list most of which would be acceptable to the House but perhaps with an offence which could not easily be considered serious. As we cannot amend orders and as we so very rarely reject them in this House—that will remain the case unless we become an elected House—the imperfect whole might have to be accepted.
The Government have a track record of trying on a curate's egg of an order. I well remember one from the Department for Culture, Media and Sport which offered a goodie to the nation of a free—in other words, to be borne by taxpayers—television licence for over-75s, but in the same order there was a huge increase, well above the usual, in the cost of television licences for everyone else. Another one is about to hit us, as we understand that the Government are to bring forward a casino order which will designate Manchester as the location for the super casino and provide a long list of other sites for less gargantuan casinos. They know full well the strength of feeling, even on their own Benches, against the selection of Manchester and the very firm strength of feeling in favour of those who appear on the long list of smaller casinos. A long list does have defects.
The Minister will say that the Delegated Powers and Regulatory Reform Committee considered this matter in its fifth report and concluded:
“Although this is an important power, and its exercise may impact significantly on the rights of the individual, we do not consider it appropriate”.
Sometimes I take a different view from the Delegated Powers and Regulatory Reform Committee for political reasons or for practical reasons. On this occasion, I can well understand why it came to that conclusion. I have tabled this amendment only to ask
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Lord Dholakia: We have similar concerns. This deals with Clause 4, a supplementary provision about involvement in serious crime, which is further supplemented by Clause 76, under which orders may be made. Our concern is whether we reject the entire order or let one offence go through because we do not see how we can scrutinise each and every offence being added. That causes us concern; it would be helpful to know the Minister’s thinking.
Baroness Carnegy of Lour: In addition to the point mentioned by my noble friend, the Delegated Powers and Regulatory Reform Committee points out that the ability to alter the menu of offences in Schedule 1 is varying the jurisdiction of the courts to make a serious crime prevention order. That is quite a big matter. That committee says that it is quite happy about it, which surprises me. My noble friend said that she thought she could follow the reasoning, but I have not got that far. It seems strange that one can do that. Surely, it would be better to have a framework within which the courts must restrain themselves in making these orders. The jurisdiction can be changed, like a dose of salts going through the House.
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Lord Crickhowell: I was away when the Bill started its passage through the House, so I come to it fresh. Looking seriously at this schedule for the first time, I am struck by the strange mix of serious offences—things included and omitted. We are later to have an amendment about armed robbery, which is not included.
As a former chairman of the National Rivers Authority, I was a little surprised to see an offence under Section 1 of the Salmon and Freshwater Fisheries Act 1975 at the top of the environment list—fishing for salmon, trout or freshwater fish with prohibited implements. I am against that being permitted, but it hardly seems an offence in quite the same category as drug trafficking, people trafficking, prostitution, child sex, money-laundering and armed robbery. If we start with a seemingly curiously constructed list, it is rather odd that it can be amended simply because the Secretary of State decides to add to or subtract something from it.
If we are to have a schedule of this kind, with all the possible consequences that have been spelled out, the Government must justify what is included in that list and not just be able to add to or subtract from it at will. I shall be interested to hear what the Minister has to say on this. Looking at the list, it seems that we must keep the whole thing tightly under control.
Lord Bassam of Brighton: I hope that I shall not disappoint, although I fear I may. The order-making power to amend Schedule 1 is necessary for several
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