Serious Crime Bill [HL]
Introduction
3. This bill deals with a number of crime-related
topics, including serious crime prevention orders, offences relating
to encouraging or assisting crime, sharing of information, data
matching and the abolition of the Assets Recovery Agency.
4. There are delegated powers to make orders
or regulations at clauses 4(4), 7, 27(6) and (11), 28(6) and (11),
32, 56(3), 61(8), 62(5)(b), 66(1), 77(1), 78(2) and (3) and 81(1)
and (3), paragraph 2 of Schedule 6 (new sections 32E(5) and 32G(1)
and (3)), paragraphs 85 and 138 (new paragraph (cb)) of Schedule
7 and paragraph 11 of Schedule 10 (new subsection (7B)). There
are also powers to make transfer schemes in Schedule 8 and modifications
of, or enlargement of the scope of, existing legislative powers
at clauses 27(5), 28(5), 34(4), 70(2) and (4), 72(2), (4), (6)
and (8) and 73(1), paragraphs 5 and 15 of Schedule 2 and paragraphs
3 and 12 of Schedule 10. All of these powers are explained in
a memorandum for the Committee by the Home Office, printed at
Appendix 1.
5. The powers at clauses 4(4), 56(3) and 77 and
paragraph 2 of Schedule 6 (new sections 32G(1) and (3)) and paragraph
85 of Schedule 7 are Henry VIII powers subject to affirmative
procedure (which applies in the case of clause 77 only when the
order amends an Act). The power at paragraph 138 of Schedule 7
is also subject to affirmative procedure. The appointed day and
transitional powers at clauses 66(1), 78 and 81, and the power
to make transfer schemes at Schedule 8, are subject to no parliamentary
procedure. All other powers are subject to negative procedure.
We wish to comment on the matters below.
Amendment of list of serious offences —
clause 4(4)
6. Clause 1 enables the High Court to make a
serious crime prevention order against a person if (in addition
to a "would protect the public" test being satisfied)
that person has been involved in serious crime. (This jurisdiction
is extended to the Crown Court by clause 19.) Whether a person
has, or has not, been involved in serious crime is determined
under clause 2 (England and Wales) or clause 3 (Northern Ireland)
by reference to a list of offences set out in Part 1 (England
and Wales) or Part 2 (Northern Ireland) of Schedule 1. Clause
5 contains examples of the type of provision that may be made
by a serious crime prevention order. These include restrictions
on business dealings, access to premises and travel.
7. Clause 4(4) enables the Secretary of State,
by order subject to affirmative procedure, to alter the lists
in Parts 1 and 2 of Schedule 1, and thus to vary the jurisdiction
of the court to make a serious crime prevention order. Although
this is an important power, and its exercise may impact significantly
on the rights of the individual, we do not consider it inappropriate.
Exceptions — clause 7
8. Clause 7 contains a broad power for the Secretary
of State to except persons from the ambit of serious crime prevention
orders. As is common with powers to except from a statutory regime,
the power is subject to the negative procedure. The memorandum
says that "there may be certain persons that should not be
capable of being subject to a serious crime prevention order because
it would not be appropriate for them to be so subject". The
House may wish to seek a fuller explanation of the Government's
intentions for the use of this power.
Bodies that may be wound up — clauses 27(11)
and 28(11)
9. Clause 27(1) enables a petition to be presented
to the court for the winding up of a company, partnership or "relevant
body" that has been convicted of an offence under clause
25 in relation to a serious crime prevention order. Clause 27(5)
adapts the existing power (subject to negative procedure) in the
Insolvency Act 1986 to apply the provisions of that Act with modifications
to insolvent partnerships, by extending it to partnerships to
which clause 27 applies; and clause 27(6) takes a similar, new,
power (also subject to negative procedure) to apply the 1986 Act
with modifications to a petition for the winding up of a "related
body". This enables the provisions of the 1986 Act to be
adapted to bodies that are not companies. "Relevant body"
is defined in clause 27(11) as a building society, an incorporated
friendly society, an industrial and provident society or such
other person as may be specified by order, subject to negative
procedure, made by the Secretary of State. The effect of the order
would be to bring other bodies within the scope of the winding
up provisions. Although this power affects the scope of clause
27, it is limited in its area of application and we do not consider
the negative procedure to be inappropriate. The same point arises
in clause 28 in respect of Northern Ireland.
Protected information — clause 62(5)(b)
10. Clause 61 enables (but does not require)
a public authority to disclose any information, as a member of
a specified anti-fraud organisation, to that organisation, to
other members of it and to certain others. Whilst disclosure must
be in accordance with the Data Protection Act 1998, it can override
any common law duty of confidence.
11. Clause 62 creates a criminal offence relating
to onward disclosure of that information. But the offence applies
only to the disclosure of "protected information". This
is defined in clause 62(5) as meaning certain revenue and customs
information specified in the bill or "any specified information
disclosed by a specified public authority", both specifications
being by order made by the Secretary of State subject to negative
procedure. The definition of protected information is central
to the working of the scheme. Whether or not information is protected
by clause 62 from onward disclosure may impact on the extent to
which public authorities will share information under clause 61.
Broadening the definition will also extend the scope of the criminal
offence. We thus consider that orders under clause 62 should be
subject to the affirmative procedure.
Data matching — Schedule 6, paragraph 2
12. Schedule 6 inserts a new Part 2A into the
Audit Commission Act 1998, enabling the Commission to conduct
or arrange for data matching exercises (explained at paragraph
196 of the Explanatory Notes). New section 32A(3) limits the purposes
of the data matching exercises to assisting in the prevention
and detection of fraud. New section 32B limits those who must
provide data to bodies subject to audit and "best value"
authorities, though new section 32C enables the voluntary provision
of data. New section 32D deals with the disclosure of the results
of data matching.
13. New section 32G(1) and (3) enables the Secretary
of State, by order subject to affirmative procedure, to add further
purposes for which data matching exercises may be conducted and
to add a public body (as defined in 32G(5)) to, or remove a body
from, the list in 32B(2) of those who must provide data.
In either case, the application of the new sections may be modified.
14. Although the justification for the power
to modify is not fully explained in the memorandum, we do not
consider new section 32G(1) and (3) inappropriate in the light
of the affirmative procedure provided.
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