Serious Crime Bill [Lords]

Public Bill Committee, 28 June 2007.

Clause 5

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I beg to move amendment No. 87, in clause 5, page 5, line 5, leave out subsection (2).

John Bercow (Conservative, Buckingham)

With this it will be convenient to discuss the following amendments: No. 88, in clause 5, page 5, line 7, leave out ‘ignore’.

No. 89, in clause 5, page 5, line 8, at beginning insert ‘ignore’.

No. 6, in clause 5, page 5, line 10, leave out paragraph (b).

No. 90, in clause 5, page 5, line 10, leave out ‘subject to this’ and insert ‘have regard to’.

No. 94, in clause 5, page 5, line 12, leave out subsection (3).

No. 91, in clause 5, page 5, line 15, leave out ‘ignore’.

No. 92, in clause 5, page 5, line 16, at beginning insert ‘ignore’.

No. 93, in clause 5, page 5, line 18, leave out ‘subject to this’ and insert ‘have regard to’.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Thank you very much, Mr. Bercow. Nine o’clock is an awfully early hour for me—I am not used to this. However, I have to get my mind round it. I am trying to remember what I was seeking to do when I drafted the amendments. I think that I remember.

The group has a twofold purpose. The first is to delete subsection (2) with the object of striking outthe facilitator as somebody who is caught by the provisions. Secondly and differently, subsection (2)(b) will direct the court to ignore what lawyers would describe as the mens rea. For the purposes of Hansard, it is mens rea, not “mens rear”. That mistake has sometimes occurred. As I have just been to a puppy show, it is all the more likely to occur, but that is by the by—[Laughter.] It is 9 o’clock, Mr. Bercow, I am so sorry. The purpose is to direct the court to the ordinary standards of mens rea.

I will deal with the two proposals, seriously. First, I have very grave doubts about the question of catching the facilitator as a matter of principle, which I have spoken of before, because the facilitator is not necessarily committing a criminal offence known to the law. He or she might commit such an offence because facilitation may amount to aiding and abetting and could be part of a conspiracy. I concede that, as a matter of law, the facilitator might be a person who is committing a substantive offence under existing law, but that is not necessarily so.

I am uneasy about including the facilitator as somebody who can be caught by the full ambit ofthe serious crime prevention orders, especiallywhen the concepts of intentional and wilful acts are not incorporated as necessary preconditions to the facilitator being caught, as is now the case, which is why I want to remove the facilitator from the scope of the order-making powers. That is the first of the purposes reflected in the group of amendments. If I cannot win on that, I would like to direct the court to have regard to the mental state of the facilitator when determining whether it is right to make the necessary or allowed orders.

Vernon Coaker (Labour, Gedling)

The right hon. and learned Gentleman will know that the Government take particular account of the McCann judgment. In respect of mens rea, the House of Lords determined that the proceedings were civil and that the following factors contributed to this decision. The question of whether a person has acted antisocially, as set out in section 1(1)(a) of the Crime and Disorder Act 1998, is an objective inquiry and no mens rea needs to be proved. Given our belief that the McCann judgment will inform practice in respect of serious crime prevention orders, is that not an important point?

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Forgive me, but I think that that point reinforces my argument. I am perfectly prepared to accept that that is true in the case of the McCann judgment, although I have studied it not on the question of strict liability, but on the question of the standard of criminal proof. I am perfectly willing to accept that the hon. Gentleman is right. I do not like cases of strict liability. They are better than cases of absolute liability, but not much.

Let us say that the proof of antisocial behaviour for an ASBO is strict liability. First, I do not like it. It is a proposition that I do not wish to extend to serious crime prevention orders, especially as their scope is much greater than the ordinary ASBO—they are referred to colloquially as super-ASBOs. The ordinary ASBO is relatively tame in contrast to the powers contained in clause 6. I do not wish to impose strict liability. That is exactly what I am arguing against, notwithstanding the fact that the Lords may have approved it in McCann. We are the House of Commons. We have a right to set the law for the courts to interpret, and it is interpreted in accordance with the corrections we give, subject to the convention on human rights.

I want to provide that, before the order can be made, the court must have regard for knowledge, intention and motive. It must have regard for at least knowledge and intention—I think motive, too. Otherwise there is strict liability. The effect of my amendment would be to strike out the part of the clause that directs the court to ignore those considerations, and incorporate them, if necessary, as preconditions. I might not persuade the Committee, but that is another matter. I believe that that is what we ought to do and if we do not do it here, I hope that it will be done in another place.

Nick Herbert (Conservative, Arundel and South Downs)

I agree with my right hon. and learned Friend that it is very early in the morning to be considering such legalistic matters, particularly when some of us do not have his great legal expertise. Nevertheless, I think that he has drawn attention to an important matter relating to the Bill.

I would particularly like to focus on clause 5(3) and its relationship with the amendment that my right hon. and learned Friend proposed to subsection (2). As we know, a person does not have to have committed or even been convicted of a serious offence to be eligible for a serious crime prevention order; they can receive an order if their conduct was likely to facilitate such an offence. In an earlier discussion on the measure, my right hon. and learned Friend expressed his concerns about that concept of facilitation and the extent to which it broadens the application of the measure. However, an additional concern is that the definition of conduct under clause 39, which is the interpretation clause of part 1, can “include omission and statements.” Clause 5(3) states that a court must ignore the person’s intentions. In other words, he does not actually have to intend to facilitate a serious offence or even believethat his actions would do so. Effectively, therefore, clause 5(3) creates an offence of strict liability.

A defence is provided in the sense that clause 5(3)(a) reverses the burden of proof. We must consider the extent to which it is acceptable that someone who has not committed a serious offence, but whose conduct is said merely to have facilitated the offence—

Kali Mountford (Labour, Colne Valley)

My problem with the debate is that the whole onus is in the wrong place. The orders are intended to prevent crime, so if someone persists in behaviour or an association that would continue to allow a crime to develop or happen, it seems odd not to want to prevent it.

Vernon Coaker (Labour, Gedling)

Good point.

Nick Herbert (Conservative, Arundel and South Downs)

The Minister says that that is a good point, but I am not sure if the hon. Lady understands the scope of those measures and the fact that criminal sanctions can be applied to conduct that could be inadvertent and which need not relate to a criminal act at all. These are all the discussions that we have had.

Jeremy Browne (Liberal Democrat, Taunton)

I might suspect that the hon. Member for Colne Valley may facilitate an offence, although she might not be able to prove to me that she does not intend to facilitate it because she might not even realise that she intends to do so. On that basis, and to prevent her from doing so, does thehon. Gentleman think that it would be reasonable for me to restrict her movement and access to premises,her working arrangements, her financial, propertyor business dealings, or any of the other matters contained within the Bill?

Nick Herbert (Conservative, Arundel and South Downs)

The hon. Gentleman puts the point very well. Where does the principle of legal certainly lie with this? How is a defendant to know, in advance, whether his activities will be judged reasonable in cases where no crime is committed and where the activities that could be caught under the Bill are not something that he or she has done, but something they have failed to do or something they have said?

Kali Mountford (Labour, Colne Valley)

Should the courts point that outto me and give me an order telling me I could not associate with people I had previously associated with, or could not behave in a way that I had previously behaved, because it would cause, or be likely to cause, a crime, I would want to desist immediately. I would not want to be associated with such situations in the future.

Nick Herbert (Conservative, Arundel and South Downs)

We are discussing the possibility that people who are innocent find themselves before the High Court. Their conduct may not necessarily be judged to the criminal standard—we had a debate that noted that there could be a sliding scale and that the test for those people could be something below the criminal standard. If that were not the case, no doubt the Government would have insisted that the criminal standard be put in the Bill.

Therefore, the person involved could be somebody who was merely associated with an issue in some loose way or someone who had failed to do something—not actually done something, but failed to do something. If that person were required by the courts, the onus of proof would be put on them to show that their conduct was reasonable. If they were then unable to show that their conduct was reasonable, an order would be placed upon them, the seriousness of which we will come to on the next clause when we discuss the onerous conditions that could be placed on that person. I, frankly, am surprised that Labour Members are not more concerned about the civil liberties implications of the orders.

Margaret Moran (Labour, Luton South)

I give a specific example from a visit to the Child Exploitation and Online Protection Centre about a social networking site that facilitates images and abuse of children, which has been warned by CEOP and the Internet Watch Foundation that this is happening but fails to act. Will the hon. Gentleman concede that that site should be caught and will now be caught under these provisions, or is he saying, laissez-faire, that we should not be protecting our children in that way?

Nick Herbert (Conservative, Arundel and South Downs)

That is a scandalous argument.The hon. Lady has stood up and asked whether I understand that, unless I support the provisions that she does, I am apparently licensing child pornography. It is scandalous.

Margaret Moran (Labour, Luton South)

Will the hon. Gentleman give way?

Nick Herbert (Conservative, Arundel and South Downs)

No, I will not give way. I will answer what the hon. Lady has suggested. First, if a social networking site is displaying such images, on my understanding, it is committing criminal offences and they should be prosecuted in the normal way.

Jeremy Browne (Liberal Democrat, Taunton)

I am following the argument closely. As I understand it, the logical extension of contribution from the hon. Member for Luton, South is that the scope of the Bill should include all adult males unless they can prove that they do not have a tendency toward paedophilia. Otherwise, is not she deliberately soft pedalling on exactly the sort of offence she wants to be considered?

Nick Herbert (Conservative, Arundel and South Downs)

The example the hon. Lady has cited seems to me to be one in which prosecution is possible. I would be interested to know whether the Minister thinks it a good example of a case in which a serious crime prevention order might be applied.

Margaret Moran (Labour, Luton South)

Will the hon. Gentleman give way?

Nick Herbert (Conservative, Arundel and South Downs)

Hold on. The hon. Lady intervened on me but is not giving me the opportunity to reply to her points. Once I have done so, if she would like to intervene again, I will happily give way. That is the first problem with the premise of the example that she gave—it could be prosecuted. The second problem is that she suggested that in this case the organisation concerned would have been warned.

On the bringing of serious crime prevention orders, there is no requirement that people should have been warned in advance. I repeat that this conduct, which could fall within the provision of the making of a serious crime prevention order, could relate to something that they have failed to do. The Bill does not say that they have to have been warned by the authorities and so on. There are no safeguards built in, other than that the defendant, or the person who is potentially going to receive this order, has to showthat their conduct is reasonable. The ability of that individual to show whether their conduct was reasonable will determine whether an order will be made. Frankly, that puts a very onerous burden on people who may be far removed from the commissioning of a serious crime.

Margaret Moran (Labour, Luton South)

The hon. Gentleman seems to assume that there is some law that requires people with websites, for example, or internet service providers or social networking sites, to take down the material. I am afraid that he is sadly, lamentably, wrong; there is no such legislation. It is precisely for that reason that we need the measures in the Bill to ensure that those operators behave reasonably. To be honest, he ought to know better than to make assertions like that, when he is not on safe ground.

Nick Herbert (Conservative, Arundel and South Downs)

It was the hon. Lady, in my view, who was making a scandalous assertion, as she was implying that our opposition to the serious crime prevention orders was, in some way, condoning pornography, and the record will show that that was the implication that she made.

I do not know whether existing legislation would not prevent people who operate such websites from displaying images of child pornography. I would be surprised if that were the case, but if it is, my suggestion would be that, given the many Home Office Bills that have been brought before the House in this session or will be in the future, one Bill could address that specific problem and make it a criminal offence. I would be most surprised if it were not a criminal offence. It should be specifically outlawed so that we could prosecute the people concerned.

After all, we know who the owners of the internet sites are. The idea that, instead, we have to use some kind of quasi-criminal procedure, draws attention precisely to the problem and the danger that the orders are going to be used inappropriately as potential alternatives to prosecution, rather than actually either prosecuting existing crimes or, if necessary, creating criminal offences to prevent harm. The hon. Lady has given an example that is helpful to us in expressing our concerns about the way the serious crime prevention orders may operate.

Vernon Coaker (Labour, Gedling)

With respect to the hon. Gentleman, I think that he is finding this particular aspect difficult. Let me give him another example, since my hon. Friend the Member for Luton, South has already provided one. I used the example previously of someone who owns a series of lodging houses, or hotels, or bed and breakfasts, which are being used for the purposes of trafficking women, for example. The situation is found out by law enforcement officers. They go to tell the hotel owner, who might live 200 miles away, and he says, “Nothing to do with me. I am a hotel owner, all I am doing is trying to make some money from my hotels.” What would the hon. Member for Arundel and South Downs say with regard to that person? Would that not be an appropriate person for a serious crime prevention order?

Nick Herbert (Conservative, Arundel and South Downs)

Does the Minister not think that that person might be committing a crime? If he thinks that they are not engaged with the commissioning of those offences of trafficking in some associated manner, I would say that it was fairly clear that they were, that they should be investigated, and that the case should be brought before the courts. I do not see what the problem would be in pursuing such a case.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Is not this the answer to the question: if the person who was allowing the premises to be used had no knowledge of the use to which the premises were being put, they should not be caught by the order? If, on the other hand, they did have knowledge of what their premises were being used for, they should be caught by the order. That is a good argument for including the words “knowingly” and “intentionally” in the Bill.

Nick Herbert (Conservative, Arundel and South Downs)

I agree with my right hon. and learned Friend. He has drawn attention to the effect of the provisions, which is to create strict liability in the absence of mens rea. I return to my original response to the Minister. In the example he gave, just as in the example given by the hon. Member for Luton, South, it would be possible to prove a criminal association if that person was facilitating trafficking. The Minister cannot deny that, and it would be infinitely preferable for that person to be brought before the court, punished and dealt with in the proper manner.

If that process were not possible then the suggestion of my right hon. and learned Friend should still apply. If Government Members are seriously saying that an order should be placed on an individual even if they were unaware of how their premises were being used, that would be an abuse of the operation of the serious crime prevention order, which is exactly what the concern is.

Vernon Coaker (Labour, Gedling)

The whole purpose of serious crime prevention orders is to prevent crime happening in the future. If somebody is facilitating crime and refuses to co-operate with law enforcement when it is brought to their attention that their premises are being used for trafficking—even if that is 100 miles away in lodging houses—and that person shrugs their shoulders, it may be appropriate for the law enforcement to go to the applicant authority to take that person to the High Court and make them the subject of a serious crime prevention order, in order to stop that criminality.

Nick Herbert (Conservative, Arundel and South Downs)

In that particular case, we should look at the ability of the criminal law to deal with people who are allowing their premises to be used for the purposes of trafficking, and what association they have with the commissioning of a criminal offence. It is possible that the existing criminal law could deal with that, but, if there is a lacuna, and it appears that the criminal law is permitting people to knowingly, or even recklessly, use their premises without regard to the fact that they are being used for trafficking, why has the Minister not introduced measures to deal with that? We would, of course, support such measures because we have been at the forefront of arguing for tighter measures to deal with human trafficking.

Instead, he wants to introduce this catch-all, sweeping provision, which would allow onerous restrictions to be placed on people who may be only loosely, if at all, associated with serious criminals. They may find themselves unable to show, because the burden of proof is put on them, that things that they have failed to do were not reasonable. That is not the right approach for these kinds of serious offences, whether of child pornography or human trafficking. If the hon. Members opposite wish to produce other examples of conduct that concern them, I would bet that in every case we could either say that it should be prosecuted, or, if there is a lacuna, that this House should look at closing the legislation.

This morning’s debate has been helpful in getting to a further understanding of exactly how the orders will be used as an alternative to prosecution. That is one of the principle objections to them. The Minister has not taken sufficiently seriously the fact that an onerous burden will be placed on people who have not committed an offence, who are only facilitators and do not even necessarily know that the serious crime has been taking place, on the basis that they have failed to do something. Our objection is that the measure goes too far, given the severity of the conditions that can be placed on such people. For that reason, I support my right hon. and learned Friend’s amendment.

Jeremy Browne (Liberal Democrat, Taunton)

I am grateful to you, Mr. Bercow, for calling me to speak in this extremely important part of our deliberations. I say that it is extremely important because I fear that many—perhaps not all, we might test that with a vote—Government Members simply have not stopped to think through properly the civil liberties implications of the legislation.

Vernon Coaker (Labour, Gedling)

I take the point about civil liberties, but we should also consider the civil liberties of the people who experience harm through the actions of some of the people to whom we want the orders to be given.

Jeremy Browne (Liberal Democrat, Taunton)

I understand completely the Minister’s point. In his earlier intervention on the Conservative spokesman, the hon. Member for Arundel and South Downs, he said that the purpose of this part of the legislation was to prevent crime that might happen in the future. Hon. Members in this room might or might not do all kinds of things in the future. I intervened earlier to comment on the previous intervention ofthe hon. Member for Luton, South. She and others appeared to think that my point was entirely spurious, but it was nothing of the sort. If the Government really believe that it is the role of the state to restrict people’s freedom on the basis that they might do something wrong in the future, why not take that belief to its logical conclusion? Why are they exposing the population to the risk of all kinds of crimes that are not covered in the legislation?

Yesterday, I saw the hon. Member for Colne Valley associating with the newest member of the Labour party during Prime Minister’s questions. She might have been completely unwitting about whether he has committed criminal offences. Under the Bill, having associated with that person, the burden of proof would be on her.

John Bercow (Conservative, Buckingham)

Order. I do not think that we will have any further dilations on the subject of the hon. Member for Grantham and Stamford (Mr. Davies), which manifestly falls outwith the terms of the consideration of the latest set of amendments.

Nick Herbert (Conservative, Arundel and South Downs)

Before the hon. Member for Taunton moves on, I refer him to the Minister’s intervention. Does he agree that that defence of the measures, which the Minister has made before and which Ministers frequently make in relation to this kind of criminal legislation, such as control orders, 28 day detention and so on, is so broad that it could licence any extension of the criminal law? To say, “When considering civil liberties, we must consider the civil liberties of victims”, is to make a sweeping argument that does not address the proportionality of the measures, but that seeks to justify the measures simply on the basis that victims are created and we ought to think about them.

John Bercow (Conservative, Buckingham)

Order. I think that we get the gistof it.

Jeremy Browne (Liberal Democrat, Taunton)

I take the hon. Gentleman’s point. I happen not to believe that we should imprison everybody whom we might suspect of having the potential to commit a crime at some point in the future. It would be extremely expensive, but I suspect that the effect of doing so would be to reduce crime in the future. Of course there is a trade off. There has to be some sense that the individual citizen is innocent until proven guilty, otherwise the state can make all kinds of sweeping assertions about a person’s intentions at some point in the future, and that person will be in no position to prove whether they intend to do as the state asserts.

The Minister made the point about the boarding house. If an owner or manager facilitates a criminal act, he should be prosecuted for that. For all I know, the Minister owns a boarding house in another part of the country and might be completely unwitting about what is going on in there. If I were to restrict his liberties for something that he knows nothing about, but might seek to use in a criminal way in the future, that would be an extremely weak protection of his liberties.

The point seems so obvious to me that I do not understand why it is so complicated for everybody to grasp. I am not a lawyer, but the convention is that if an individual commits a criminal offence, that person goes to court and is prosecuted. The jury hears the evidence and makes a decision about the guilt of that person. If they are found guilty beyond all reasonable doubt, they go to prison or face some other sanction. I never knew that that process could be turned on its head, and that an assumption would be made that a person will commit a crime in future unless they can prove that they do not intend to do so. That is extremely difficult to prove.

What is more, a court does not have to be satisfied beyond all reasonable doubt that a person may in the future know somebody who may intend to commit a crime; it need only be satisfied that that is a possibility. I would be happy to take interventions from members of the Committee who think that that is a reasonable basis on which to proceed, but they would first have to guarantee that at no point in the future will they know anybody who may be in a position to commit a crime. To be associated with such a person would mean that we may end up voting to restrict our own liberties, as well as every other citizen, should I press the matter to a Division.

Vernon Coaker (Labour, Gedling)

May I ask the hon. Gentleman the question I asked the right hon. and learned Member for Sleaford and North Hykeham? If what he has said is correct, what would he say to the House of Lords on civil orders? The Government expect ASBOs to be used as a reference point for serious crime prevention orders, and we think the same on the issue as the House of Lords. The House of Lords judgment in McCann said that the question of whether a person had acted antisocially was an objective inquiry and no mens rea need be proved with reference to section 1(1)(a) of the Crime and Disorder Act 1998. To make it clear, is the hon. Gentleman saying that the Lords’ judgment is wrong?

Jeremy Browne (Liberal Democrat, Taunton)

The point is that the difficulty with gangster ASBOs, as Government spin doctors call them, is that the range of sanctions, which we will come to discuss, is equivalent to the ASBOs that he mentioned. I do not think that it is.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

The answer to Minister’s question is that the House of Lords was interpreting the law, not expressing a view as to whether it should be a strict liability. It was merely saying that, as a result of the language of the legislation, there is strict liability.

Jeremy Browne (Liberal Democrat, Taunton)

I was hoping to finish my speech a while ago, but I am grateful for that insight. The Minister will have taken that point on board. The available sanctions are different in those cases. We will talk about the sanctions that are likely to be put in place when we discuss clause 6. I shall not make my speech on the sanctions now, but they are extremely serious. In terms of curtailing liberties, they stop just short of imprisonment. If the state intends to take such action, it must do so on more substantial grounds than the ones that we are discussing.

Vernon Coaker (Labour, Gedling)

I apologise to the hon. Gentleman for intervening again and I am grateful to him for giving way, but he said that the available sanctions stop short of imprisonment. How can he say that a High Court, which is a public authority subject to the Human Rights Act 1998, would actually impose any such sanctions? Simply put, the court would not be able to do so because it would have to have regard to human rights legislation. This is an emotive subject for the hon. Gentleman, but what he asserted is not the case—a court would not take such action.

Jeremy Browne (Liberal Democrat, Taunton)

Perhaps the Minister might prefer me to discuss these comments in greater detail when we come to clause 6. Briefly, clause 6(3)(a) mentions a restriction on

“an individual’s financial, property or business dealings or holdings”.

John Bercow (Conservative, Buckingham)

Order. The hon. Gentleman cannot refer to a subsequent clause and he might be well advised to follow his own initial counsel in terms of the scope of his present remarks.

Jeremy Browne (Liberal Democrat, Taunton)

I should have stuck to my initial instincts.

Jeremy Browne (Liberal Democrat, Taunton)

I should have stuck to my initial instincts.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Is not the answer to the Minister that the control orders, which the Government have introduced and which the courts sometimes approve, have the effect of confining people in their own houses, andthat is a form of imprisonment notwithstanding the European convention on human rights?

Jeremy Browne (Liberal Democrat, Taunton)

That is another observation about clause 6 with which I agree, and look forward to debating in due course.

Crispin Blunt (Conservative, Reigate)

I think that we have had a particularly interesting debate. I want to congratulate Labour Members for doubling the number of Back Benchers who have spoken on the Bill. There were no set-piece speeches on Second Reading, although there were some interventions from the Parliamentary Secretary, Cabinet Office, the hon. Member for Wolverhampton, South-East (Mr. McFadden). Selection, therefore, must have been difficult for the Government.

However, there are important issues here about the context in which the amendments are being put forward; what we are doing to our assumptions about society; and co-operation by the public with the authorities that are sitting there with the powers that are being sought under this legislation. I hope that Committee members will reflect on the powers that we are seeking to take and on the different assumptions that exist on both sides of the Committee. Will Labour Members reflect on what is happening with the assumptions that underlie this legislation?

Earlier, the Minister gave us an example of a hotel or property owner whose premises were being used for trafficking. If the owner had brought the matter to the attention of the police, one would expect that most citizens would wish to co-operate with the police to ensure that that illegal activity did not continue on their premises.

There must be a limited number of occasions on which people turn round to the police and say, “Up yours, inspector. You can get on with it and doit yourself.” If there is no co-operation in such circumstances, that would leave the police to draw all sorts of conclusions about the nature of that individual and the amount of investigation that should then take place.

However, the Government’s answer to the perceived problem is to take a whole reef more powers to implement these orders so that the High Court can levy an order on those individuals who do not see the police as their people and refuse to co-operate. They have done it with terrorism prevention orders, control orders and, at the bottom end of the scale, ASBOs. We are now filling in the gap in the middle with serious crime prevention orders. There is a profound problem here about what will happen to the nature of the relationship between the state, the police and its agents and the rest of society.

The rest of society sees the state taking all those powers to itself—

John Bercow (Conservative, Buckingham)

Order. These observations are very wide of the set of amendments that are currently before the Committee. I know that the hon. Gentleman, who is an experienced parliamentarian, will now wish to refocus his remarks on the set of amendments with which we are dealing.

Crispin Blunt (Conservative, Reigate)

Indeed, Mr. Bercow. However, I only intend to produce these arguments once in our proceedings. They are in the context of these amendments in which my right hon. and learned Friend the Member for Sleaford and North Hykeham is seeking to remove from the Bill the wording thatsays the responsibility then falls on the respondentto explain his circumstances. Therefore, the general arguments apply to that specific wording. I hope that you will bear with me, Mr. Bercow. My general principles apply here and I think that the arguments should be made once during the course of the proceedings.

It is the duties that are placed on the respondent that my right hon. and learned Friend is addressing. The principal issue at stake is that the more powers are taken by the state, the less the individual citizen will feel the need and responsibility to co-operate with agents of the state. We have seen that happen in all sorts of areas. We perceive a problem; then we pass legislation and the state takes powers to deal with it. People then say that such matters are no longer their responsibility but ours, and that if we want to do something about it, we have to go to the court for an order. The amendments tabled by my right hon. and learned Friend would improve the position, but I accept that my arguments apply more widely to all the powers. I hope that members of the Committee will reflect on what such orders and powers will do to the nature of our society.

Vernon Coaker (Labour, Gedling)

Good morning, Mr. Bercow. As this is my first formal contribution to the Committee this morning, I wish to welcome you to your second sitting of the Committee. I also welcome all members of the Committee to our proceedings, the start of which seems a long time ago, although we are now a bit more awake than we were at 9 o’clock this morning.

We are having an important discussion. In response to what the hon. Member for Taunton said, we are all concerned about the civil liberties of citizens. We were arguing—and well, I thought—that, of course, all law impacts on the civil liberties of others. We must therefore ensure that a correct balance is struck. We believe that, through the use of the civil and criminal courts, we can reduce the level of harm in society. By impacting on serious criminals by the use of prevention orders, we shall reduce the level of harm. It may impact on the liberty of the particular individual who is made the subject of the serious crime prevention order, but for the purposes of preventing harm.

If we prevent harm in the future, the civil liberties of others in our community will be enhanced. I cannot believe that the hon. Gentleman or others do not learn from their surgeries that people are aware of the need for a balance in civil liberties, because I and my hon. Friends experience it all the time. That is of the essence. There may be differences between us. I respect people’s views, but we believe that a proportionate response that impacts on the serious criminal will prevent harm in the future. If the response was not reasonable and proportionate, the High Court would not allow the serious crime prevention order to be made.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

The hon. Gentleman frequently uses the phrase “reasonable and proportionate”. That language does not appear in the Bill, although it did in my amendments. If he were so keen for those criteria to be adopted, why on earth did he not accept my amendments?

Vernon Coaker (Labour, Gedling)

The right hon. and learned Gentleman has much experience of, I presume, the civil courts as well as the criminal courts. I have limited experience, but I do know—as do all members of the Committee—that the High Court is bound as a public authority to comply with the terms of the Human Rights Act. It cannot act in a way that is not reasonable. It cannot act in a way that is not proportionate. That is implicit in all its actions. High Court judges throughout the country know that and will apply the law appropriately.

Jeremy Browne (Liberal Democrat, Taunton)

On a genuine point of clarification—if a future Government were to repeal the Human Rights Act, would the Minister still feel secure in recommending the proposals that we are discussing?

Vernon Coaker (Labour, Gedling)

If we project something like that into the future, who can say what will be appropriate? In answer to the right hon. and learned Gentleman, who raised a fair point, we all want the courts to impose the orders—to implement the legislation—reasonably and proportionately. The High Court will have to do so because it has to comply with the Human Rights Act; being reasonable and proportionate will therefore be the court’s byword.

Kali Mountford (Labour, Colne Valley)

My hon. Friend is right; my constituents frequently say that they want to see a balance in civil liberties. However, they also say that the balance is currently wrong. They feel that they are not sufficiently protected from criminal activity. I want to see that protection put in place through the orders.

Vernon Coaker (Labour, Gedling)

I think that my hon. Friend is right. Notwithstanding the sincerity of the views being expressed in our debates, people are continually asking whether we have the balance right. Through the Bill, we are trying to ensure a better balance, and we believe that the amendments would make it more difficult. I agree entirely with my hon. Friend.

A number of hon. Members have made the point, especially in our debate on amendment No. 87, that we need to keep in mind the civil liberties of the victims as well as those of the perpetrator. We need to understand whether the attack on those liberties—their diminution—is necessary.

It is important to say that most of the orders that will come about as a consequence of this legislation will be the result of criminal conviction; nor do we believe that a large number of orders will be made through facilitation. It was estimated in the other place that about 30 such orders would be made per year, but we do not know what proportion of them would be made through facilitation other than in criminal convictions. If I have further information, I will let the Committee know. However, we expect the vast majority of orders to be associated with criminal convictions. That should offer some reassurance.

It will be difficult to obtain an order on the basis of facilitation, because it will have to be proved virtually to the criminal standard, but we believe it to be an important provision. The fact that the vast majority of orders will be based on convictions proves their worth. We are trying to prevent future crime.

The McCann judgment is extremely important. I am not a lawyer, and the right hon. and learned Member for Sleaford and North Hykeham may correct me if I am wrong, but I—and, I am sure, all hon. Members—frequently hear barristers and solicitors citing House of Lords judgments in support of their findings. The House of Lords is the most senior court in the land. Its judgments and what is said about the use or the interpretation of the law are important.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I make a point that I made earlier tothe hon. Member for Taunton. In the McCann case, the House of Lords was not expressing a view as to the merits of strict liability but merely saying that the ASBOs were an example of strict liability. It was interpreting the language of the legislation, saying that it created a strict liability, not expressing a view onits merits.

Vernon Coaker (Labour, Gedling)

As the right hon. and learned Gentleman said, it was interpreting the law.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

And we made the law.

Vernon Coaker (Labour, Gedling)

For the benefit of the Committee, I repeat what the right hon. and learned Gentleman said: the House of Lords was interpreting the law. The point is that it concluded that the orders are civil; and one factor for believing that they are civil was the absence of a mens rea element. I believe that that conclusion is applicable to the serious crime prevention order.

Nick Herbert (Conservative, Arundel and South Downs)

I am not a lawyer either; no doubt, therefore, the Minister and I will struggle together.

I would like to ask whether there is a difference between the drafting of serious crime prevention orders and the drafting of ASBOs; the Minister referred to the McCann judgment, as it applies to ASBOs. I ask that question because section 1(1)(a) of the Crime and Disorder Act 1998 says of ASBOs that a person must have acted “in an anti-social manner”. However, the notion of serious crime prevention orders rests—

John Bercow (Conservative, Buckingham)

Order. First of all, with the greatest of respect to the hon. Gentleman—I am sorry to have to interrupt him—his intervention is becoming rather long. I will allow him to complete it very briefly. Secondly, may I just make the point to the Committee that we are now straying into what is effectively a clause stand part debate, which will have implications for my judgment when we reach the question of whether the clause should stand part?

Nick Herbert (Conservative, Arundel and South Downs)

Thank you, Mr. Bercow. I was seeking to ask the Minister a question directly about a defence that he was raising as to why these amendments were not necessary to this clause; I shall come to that question now. Is it not the case that, whereas ASBOs are made if a person has acted “in an antisocial manner”, serious crime prevention orders can be made if somebody is involved in serious crime or facilitates it? And does that not mean that the serious crime prevention orders are broader in their nature than ASBOs, which should affect our decision as to the necessary mens rea?

Vernon Coaker (Labour, Gedling)

The hon. Gentleman will know that there are two tests in clause 1 that outline what must be demonstrated in the High Court for somebody to be made the subject of a serious crime prevention order. There are two limbs to clause 1(1): paragraph (a), the involvement in serious crime; and paragraph (b), whether the order will prevent future crime. I was referring to the McCann judgment, which said that ASBOs were civil orders, confirming that fact and the fact that one of the reasons that they are civil orders is that no mens rea needs to be proved. We are saying that, with respect to serious crime prevention orders, we think that the McCann judgment will be taken into account.

Nick Herbert (Conservative, Arundel and South Downs)

I should be grateful if the Minister would answer my question. In rejecting these amendments, it seems that he is relying on the McCann judgment as it applies to ASBOs. I have asked him a simple question; are ASBOs the same in their nature as serious crime prevention orders, or not?

Vernon Coaker (Labour, Gedling)

As the hon. Gentleman knows, antisocial behaviour need not necessarily amount to criminal behaviour; the test in a serious crime prevention order is similarly structured, but aimed at different problems. ASBOs are aimed at antisocial behaviour; the other is aimed at serious criminals, to prevent serious crime. The McCann judgment is applicable to serious crime prevention orders, as it is applicable to ASBOs.

As I said, the vast majority of serious crime prevention orders will be made upon criminal conviction, precisely because it will be difficult to prove facilitation. I am afraid that I must ask the Committee to resist these amendments. They go to the mental state of the potential subject of an order at the time that he facilitated or acted in a way that was likely to facilitate serious crime.

We have already discussed the issues related tothis matter during my introduction and the other comments that the hon. Member for Taunton has made, so I do not propose to repeat all the points that I have made. This area was also debated at some length in another place. That debate was informed by the briefing meetings that Baroness Scotland organised for colleagues with Sir Stephen Lander, the head of the Serious Organised Crime Agency.

Would someone please intervene while I find the right speaking notes? Thank you very much; that was a good intervention. [Laughter.] I am more than willing to arrange similar meetings with Sir Stephen for colleagues from this House.

At present, no mental element is included in the court’s consideration of whether a person has facilitated a serious crime, or has acted in a way that is likely to facilitate a serious crime. The overarching context for this consideration is set out in the test in clause 1 of the Bill. In deciding whether to impose an order, including deciding whether the proposed subject has been involved in serious crime, the courts will act only in a way that is reasonable and proportionate.

Clause 1(3) also expressly sets out the terms of the order that must be made for the purpose of preventing future involvement in serious crime. It is possible that there will be instances where the court considers that it is reasonable and proportionate to put in place an order that will prevent the harm caused by serious crime, but where it is virtually impossible to prove a particular mental state.

The purpose of a serious crime prevention orderis to prevent the harm caused by a person’s future actions; they are not intended to punish a person’s past actions. If a person’s past actions cause harm, we should equip law enforcement to put a stop to those actions, notwithstanding that the person may not have intended the harm their actions cause. The example of the lodging-house owner would be especially true in that respect.

If amendment No. 6 were to be made, depending on the circumstances, the lodging-house owner might successfully argue that he did not intend his houses to be used for people trafficking or did not know that they were being used in that way and so he should not be given an order. Amendments Nos. 88 to 93 would have a similar effect but they would ensure that the court must have regard to a person’s intentions or other aspects of his mental state.

Nick Herbert (Conservative, Arundel and South Downs)

The Minister sought to rely earlieron the courts applying a reasonableness test in their attitude to the making of serious crime prevention orders. Is he seriously saying in the example he has just given that he believes that a court would allow such a person to get away with that defence?

Vernon Coaker (Labour, Gedling)

I am just saying that it would be a matter for the courts to decide what was reasonable.We have been through the argument on facilitation a number of times; when somebody is told by law enforcement that their actions are causing harm and that person then refuses, and almost with a shrug of their shoulders, says, “Well, it’s nothing to do with me. My intention isn’t that my house should be used for that. I am just trying to make money,” it is perfectly reasonable in those circumstances for law enforcement to go to the applicant authority and for an order to be placed before the court. It is then a matter for the respondent—the person on whom the applicant authority is trying to impose an order—to prove to the court that their actions were reasonable, and if they were, they will not become the subject of a serious crime prevention order.

We should also recognise that when the respondentis in court trying to prove his reasonableness, the standard of proof in that particular instance would be the balance of probability. In that situation, what a lodging-house owner whose houses or hotels are being used for trafficking would have to demonstrate is that in response to a request from law enforcement, not doing anything about it, or simply shrugging his shoulders, was reasonable. If he can show that to the satisfaction of the High Court, he will not become the subject of a serious crime prevention order. That is perfectly reasonable; it reflects the points made by my hon. Friends.

The vast majority of people in this country would believe that if someone is told or asked by law enforcement to understand what is happening in their hotels, it is perfectly reasonable to expect them to do something about it. If they do nothing about it, in order to prevent harm in the future, the serious crime prevention order ought to be available to the applicant authorities.

Nick Herbert (Conservative, Arundel and South Downs)

I understand the Minister’s argument and his concern about this type of behaviour but—assuming he agrees that prosecution for an offence would be preferable to making a serious crime prevention order, in all cases but certainly in this case—why would serial failure to comply with a request from the law enforcement agencies not be good evidence of complicity in a crime?

Vernon Coaker (Labour, Gedling)

I am not a lawyer, but the right hon. and learned Member for Sleaford and North Hykeham might say that proven intent in a situation such as the one I have just outlined would be extremely difficult. What the Government are saying is a point of difference between us. We have said numerous times that we do not see any of this as an alternative to prosecution where possible. We have also said we believe that, in the vast majority of cases, serious crime prevention orders will follow a criminal prosecution. What we are talking about here is an instance—a possibility—where somebody is facilitating serious crime, has been told by law enforcement of the facts about their lodging-houses or the other examples that my hon. Friends gave, and has simply shrugged their shoulders and said, “I have no knowledge of that.” My intention is not that the orders are used for that purpose. However, if somebody simply shrugs their shoulders, we think it perfectly reasonable that serious crime prevention orders are available; law enforcement can go to the applicant authorities, which then seek a serious crime prevention order in the High Court.

John Bercow (Conservative, Buckingham)

Order. For the benefit of the Minister and that of all the Committee, I understand the intensity of feeling on the particular point—I emphasise the singular—that has been preoccupying the Committee for some minutes now. However, as Chair, I have to judge whether the matters are new or simply a repetition of what has already been said. I now feel that a particular point has been dwelt upon intensely, at considerable length, and does not require to be repeated further. If the Minister feels that he now wishes to move on to any additional points that he needs to make in response to the amendments tabled by the right hon. and learned Member for Sleaford and North Hykeham, the Committee will await that with eager anticipation.

Vernon Coaker (Labour, Gedling)

Brilliant. Your brilliant chairmanship, Mr. Bercow, never ceases to astonish me. With that gentle admonishment, let me conclude. Amendments Nos. 87 and 94 delete subsections (2) and (3) and appear to be consequential on the removal of the concept of facilitation from the Bill. As already discussed, we believe that basing an order on the facilitation of serious crime is an important and valuable feature of the Bill, because it will allow us to tackle those whose actions provide the infrastructure and support for serious criminal networks. For those reasons, I would ask the Committee to reject the amendments, if they are not withdrawn.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Heeding what you say, Mr. Bercow, I would none the less like to respond briefly. There is one general point relating to McCann and three specific points that I would like to address.

On the narrow point of strict liability, I repeat a basic fact: the McCann judgment did not involve the House of Lords in saying what should be. In the judgment, the House of Lords merely said that, because Parliament had framed the legislation in a particular way, it was a case of strict liability. The House of Lords was not expressing quality—a view as to whether the merits lay in favour of strict liability—but was merely saying that that is what the legislation involved. That is no more than what we are saying. The Bill is a Bill that involves strict liability. We know that. The Minister cannot pray in aid the House of Lords to say that it should be strict liability—the House of Lords was not addressing that question. I will move on.

The Minister basically advanced three arguments: first, the protection of the public; secondly, in any event, somebody who continues an activity knowingly should be caught by the order-making powers; and, lastly, in any event, the convention on human rights as incorporated into the Human Rights Act 1998 would be a proper defence. Those are the three arguments, and I would like to respond briefly.

As for the protection of the public, I am an old-fashioned libertarian and do not pretend to be anything else. I subscribe to the view that it is betterby far that the guilty should go free than that the innocent should be caught. That is a proposition I have subscribed to all my life when practising at the Bar. Itis also the proposition which underpins the British legal system. It is why cases have to be proved beyond their reasonable doubt and not on the balance of probabilities and it is true that if one allows people who probably are guilty to go free—which is what I want to see—then in some cases they will go and commit further offences down the track. To that extent the public are put at risk by our criminal standard of proof. But because we believe fundamentally that the innocent should not be convicted, we have set this high threshold. I happen to believe that that standard applies in cases such as this.

I make this further point, as one who has used Executive power and who has practised in the courts off and on for most of my life: all power is abused. All power is abused, whether it is by senior or junior people. One should never ever give power to the Executive, unless it is absolutely essential. Where power is given to the Executive or to the officer of the state, one must set that power about with constraints and provisions designed to safeguard the citizens, because power will be abused. We are not doing that in this Bill; we are giving unconstrained—or relatively unconstrained—powers. I am against that in principle, about as passionately as I could ever be about matters in politics. I am a libertarian. I stand for the individual against the state; that is my role. When I have to make a choice between the relative values of the individual and the values of the state, as a presumption, I favour the individual.

Ian Lucas (Labour, Wrexham)

As I understand it, this particular clause gives powers to the courts, not to the Executive.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Forgive me, but what is happening here is that we are removing from the courts the ability to ask themselves the question: what is the knowledge and the intention of the person to be affected by the order? That is what I believe to be fundamentally wrong.

Ian Lucas (Labour, Wrexham)

Is it not the case that this concerns the courts? It is an order to be made by the courts, to be considered by the courts. It is not giving power to the Executive.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

The hon. Gentleman is not right. If one looks at the identity of the person who seeks the orders, one will find that it is the Executive. It is the various agencies who are designated in the Bill. They will certainly on occasion abuse their powers. The plain truth is that the courts are not given the ability to prevent that abuse because we have struck out all suggestion that mens rea should be included. We have not included any suggestion that the order should be necessary, proportionate and just; we have given unfettered powers to the court which can be exercised on the initiative of the Executive. I am against that.I am against it for the civil libertarian reasons that I have advanced and I have stood by in this House for30 years.

May I move on from that point? I am waxing unduly powerfully on the matter. My second point is this. The Minister’s case was something like this: is it not right that an order should be made when the facilitator continues an activity after the facilitator has been warned? The Minister made that point time and time again—after the facilitator had been warned.

There are two points to be made. First, the language of the Bill does not require a warning. The facilitator can be made the subject of an order whether or not the facilitator had knowledge of the activity on which complaint has been made.

Vernon Coaker (Labour, Gedling)

It would be the prosecuting authorities that decided whether to go for a serious crime prevention order. Let us say that the Crown Prosecution Service decided to try to take out a serious crime prevention order against somebody in one of the examples I have just cited, and that that person had not been warned but the applicant authority still went ahead with the serious crime prevention order. Does the right hon. and learned Gentleman not agree that, if the respondent then went to the High Court, it would be perfectly reasonable for him to say that he had never been warned of what was going on and that he had never been told that his lodging-houses were being used for trafficking? Does he not agree that, in those circumstances, the High Court would say that, because he had never been warned, it would not be appropriate to make a serious crime prevention order against him?

Douglas Hogg (Conservative, Sleaford and North Hykeham)

No, I do not come to that conclusion. One reason why I do not is because clause 5(2)(b) positively enjoins the court to ignore

“his intentions, or any other aspect of his mental state”.

The Minister’s own legislation therefore requires the court to ignore whether the person had knowledge, whether he had an intention, and what his mental state was. That is in the Bill, and that is one reason why I dislike the Bill so much. The facilitator can be caught—without knowledge and irrespective of his mental state. That is the first point.

The second point is that, if the Minister wants to confine matters to those instances in which a warning has been given, then for goodness’ sake he should incorporate appropriate language in the Bill, such as “knowingly”, or “intentionally”. The Minister seeks to rely on certain examples. However, I happen to have in front of me section 8 of the Misuse of Drugs Act 1971, which stipulates that a person commits an offence if

“being the occupier or concerned in the management of any premises, he knowingly permits or suffers any of the following activities to take place”.

There follows a list of drug-related activities. The interesting word is “knowingly”. Parliament was there addressing on a previous occasion precisely the issue that is before us, and there are many other examples to cite. It has always recognised that knowingness, the mens rea, is an essential element. In that case it was an essential element of a certain class of offence, although in the present case we are discussing a type of order. The Bill disregards the precedent of many years and we should not allow that.

There is a further point. The Minister says, “Of course we shall not act unfairly or disproportionately, because the European convention on human rights is incorporated in domestic law by the Human Rights Act.” I simply do not agree. I do not wish to be rude to him, but he is ignoring the language and architecture of that Act. There is nothing in the convention that says, in terms, that a court must not act disproportionately or unreasonably. Instead, there are article rights, which are of various kinds, such as the right to a fair trial that is contained in article 6, or the right to life and liberty. The court determines whether those rights are in some way infringed. There is no general injunction to act reasonably.

Reference has been made to the McCann case, for which incidentally—by chance, as it were—I have the headnote. Perhaps I should remind the Committee that the respondent in that case said that there was infringement of his human rights as provided for by the convention. Surprise, surprise, the House of Lords held that the convention right in article 6.2 did not apply. The reason was that the proceedings were not criminal but civil: precisely the kind of circumstance in relation to which the Minister is asserting that the convention provides safeguards—yet one in which the House of Lords held that the convention applied not at all.

I see that you are twitching, Mr. Bercow, but before you get very impatient with me I have one final point to make. Of course, the courts are an important safeguard of our rights. However, they can only really constitute such a safeguard if they apply legislation together with, to some degree, the principles of natural justice, and if they consider cases of judicial review. I supported the incorporation of the convention on human rights into domestic law for one reason. I reluctantly came to the conclusion that Parliament was no longer protecting the rights of the citizen. I concluded that the courts needed to have enhanced powers precisely because we were failing in our duty. It has a very unsatisfactory consequence in that it gives to judges the role of legislators, and I do not like that. My own belief, oneI hold very firmly, is that it is the business of Parliament—Members of Parliament, the other place—to safeguard the rights of our fellow citizens. We should not be delegating this to others. We should have the courage to incorporate the necessary safeguarding language in the Bills. It is quite wrong to say this is the business of the courts; it is our business and we are not doing it.

John Bercow (Conservative, Buckingham)

I assume from the observations of the right hon. and learned Gentleman that he does not intend to withdraw his amendment.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Absolutely.

Clause 6

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I beg to move amendment No. 96, in clause 6, page 5, leave out lines 22 to 24 and insert—

‘(1) The Court may make orders specified in subsections (3), (4) and (5) below.’.

John Bercow (Conservative, Buckingham)

With this it will be convenient to discuss the following amendments: No. 97, in clause 6, page 5, line 29, leave out ‘Examples of’.

No. 98, in clause 6, page 5, line 31, after ‘orders’, insert ‘may’.

No. 99, in clause 6, page 5, line 40, leave out ‘Examples of’.

No. 100, in clause 6, page 5, line 42, after ‘orders’, insert ‘may’.

No. 101, in clause 6, page 6, line 4, leave out ‘Examples of’.

No. 102, in clause 6, page 6, line 5, after ‘orders’, insert ‘may’.

No. 103, in clause 6, page 6, line 25, leave out from ‘orders’ to ‘prohibitions’ in line 27 and insert ‘may not include’.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

The purpose of these amendments is effectively twofold. It is to strike out subsection (1) and to modify subsection (3).

May I remind the Committee that—[Interruption.] Was it my handkerchief or am I perambulating?

John Bercow (Conservative, Buckingham)

Order. It was the handkerchief that caught my eye. [ Laughte r .] The right hon. and learned Gentleman was not out of order but he was not perhaps quite as sartorially elegant as he ordinarily is. [ Laughter .]

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I was wondering whether I was strolling around the place. [ Laughter .]

Anyway, the purpose of this group is twofold: to strike out subsection (1) and to modify subsection (3).

I remind the Committee that the definition of serious crime includes anything that the court wishes to treat as a serious crime. We have already had that debate. The language will be found in clause 2(2)(b).

We need to keep it in mind that the background is not just the defined offences but any other offence that the court thinks appropriate. Then one goes to clause 6(6) and we find something rather similar, because the various specific powers that are referred to in clause 6(3)—which are draconian, and have already been referred to by various hon. Members—are only examples. We are not confining the power of the court to the categories that are set out. The court can, in fact, make any order that it thinks appropriate; we go back to the language of clause 6(1). The various examples are but examples and they extend right across the spectrum of human activity: who the person meets; where they go; the type of business that they undertake; what they do with their financial arrangements, and this and that. It extends to the power to prevent a person from living in a particular place, or requiring a person to live in a particular place. I think that it would enable the court to impose curfew orders, which, as we know, are a form of house arrest.

There is no limitation to these powers, which is, of course, one of the reasons why in previous debatesI have tried to introduce the criteria of justness, proportionality and reasonableness, but I failed. This is an important clause, because it gives the power to the court to do anything that the court thinks appropriate. I cannot, cannot, cannot believe that that is right, and I really think that if this House understood what was being said and done in this Committee it would be deeply shocked.

The truth is, Mr. Bercow—you and I know this, as we have been in the House a very long time—that most Members do not read Bills, and they do not read Committee proceedings either. Most Members do not know what is happening and the Executive can do pretty well what it pleases, because of the rubber stamp procedures that, I am afraid to say, we have created in this place. I happen to believe that this Bill is a scandal and I really believe that a House of Commons that was unfettered and voting freely, probably secretly, would never pass this sort of thing. I very much hope that the Minister will reflect on whether it is right to give the court the power to make any order, of which this measure is but an illustration.

Nick Herbert (Conservative, Arundel and South Downs)

I rise once again to support my right hon. and learned Friend’s amendments. We, too, have concerns about the broad scope of the provisions in clause 6(3) and the extent to which the prohibitions that are set out are only examples of conduct and activity that may be prohibited or restricted or the requirements that may be imposed under the serious crime prevention order. It is a non-exhaustive list and the purpose of the amendments, as my right hon. and learned Friend explained, is to make it an exhaustive list.

The restrictions in the making of control orders are similar to those set out in the Prevention of Terrorism Act 2005. There are close analogies between control orders and the serious crime prevention orders proposed in the Bill. In considering whether the restrictions are reasonable, it is important to look at how control orders have been interpreted by the courts, how they have fared and, in particular, their use in relation to detaining people in their homes, which is the subject of huge controversy and is permitted in relation to serious crime prevention orders in the Bill.

There is an important difference, to which the hon. Member for Wrexham drew attention, in that the serious crime prevention orders are made by the courts and not by the Executive, although my right hon. and learned Friend explained the extent to which the Executive has an important role in all this. By contrast, control orders are made by the Executive.

It is also important to note the absence of a safeguard in making these very onerous restrictions in clause 6(3): under the control order legislation in section 8 of the Prevention of Terrorism Act, the prosecution—

Joe Benton (Labour, Bootle)

I remind the Committee that with this we will discuss the following amendments: No. 97, in clause 6, page 5, line 29, leave out ‘Examples of’.

No. 98, in clause 6, page 5, line 31, after ‘orders’, insert ‘may’.

No. 99, in clause 6, page 5, line 40, leave out ‘Examples of’.

No. 100, in clause 6, page 5, line 42, after ‘orders’, insert ‘may’.

No. 101, in clause 6, page 6, line 4, leave out ‘Examples of’.

No. 102, in clause 6, page 6, line 5, after ‘orders’, insert ‘may’.

No. 103, in clause 6, page 6, line 25, leave out from ‘orders’ to ‘prohibitions’ in line 27 and insert ‘may not include’.

Nick Herbert (Conservative, Arundel and South Downs)

At the end of the previous sitting, I was discussing the amendments to clause 6 that are in the name of my right hon. and learned Friend the Member for Sleaford and North Hykeham. He expressed concern about the ambit of the prohibitions, restrictions and requirements that that the Bill will allow under serious crime prevention orders.

His amendments seek to address his specific concern that clause 6(3) does not set out the nature of such prohibitions, but provides only a non-exhaustive listof examples of prohibitions that can be made. The listis similar, although not identical, to the list of prohibitions and restrictions related to control orders, to which serious crime prevention orders are directly analogous. There are some significant differences, andI would like to ask the Minister about at least twoof those. It is important that we understand how comprehensive the prohibitions and restrictions might be before we permit any of them to go forward in an open-ended manner.

Section 1 of the Prevention of Terrorism Act 2005, which is entitled, “Power to make control orders”, contains some provisions similar to those in clause 6(3) of the Bill, as well as additional specific obligations that can be placed on an individual. They include requirements on an individual to

“allow himself to be photographed”

and to

“co-operate with specified arrangements for enabling his movements, communications or other activities to be monitored by electronic or other means”,

which permits tagging. There is also a requirement on the individual to “surrender his passport”.

Those three requirements of the 2005 Act, whichall relate to control orders, could be made underclause 6(3), because the list that it contains non-exhaustive. Unless those provisions were specifically ruled out, which I do not believe they have been, it will be possible to enforce not only the significant restrictions in clause 6(3), which are set out only as examples, but the additional ones specified under the control order legislation. We need to focus on how restrictive those conditions could be. Subsection (6) says that the restrictions may relate to private dwellings.

The Government clearly intend the measures to be very wide indeed. In the White Paper, “New Powers Against Organised and Financial Crime”, which preceded the Bill, the Government discussed the kind of conditions that could be included in serious crime prevention orders under the proposed legislation. They conceded:

“For a civil order not to be considered criminal, and thus attract the additional protections of article 6 ECHR, the conditions attached must be designed to prevent harm, not be punitive.”

My argument is that many of the conditions in the clause add up to potentially punitive measures.

As the Government then conceded, there is a difference in the way in which antisocial behaviour orders operate and how control orders and serious crime prevention orders work. The comparison has been made frequently. ASBO conditions are prohibitive and are not used to require certain courses of conduct. The paper noted that specifically and that, in relation to terrorist control orders, Parliament had chosen to specify in broad terms the conditions that could be imposed under the Prevention of Terrorism Act 2005 to which I have referred.

The conditions include requirements to “behave in certain ways”. They are requirements to do something; they are not only prohibitions. The paper said that that was

“an additional power we are keen should apply to these orders too.”

The sweep of the potential restrictions is immense. They will apply not only to people’s homes; they will not just prohibit people from doing things in the way in which the ASBO legislation works, but they will require people to do things. Let us consider the analogous powers of control orders. It is worth bearing in mind exactly the sort of thing that control orders have required people to do.

Let us consider the 18 people who were subjected to control orders in January this year to whom Lord Carlile’s report referred. All 18 are required to reside at a specific residence, 10 of whom are subject to curfews of between 12 and 14 hours a day. That is what the Government have attempted in their restrictions of people and their movements in respect of control orders. The legality of such measures remains to be seen. The courts have said that restrictions are likely to be unlawful under the convention. The case is currently subject to appeal, and I shall return to it in a minute.

I argue that curfewing and that sort of detention amounts not to a preventive condition, but to punishment. However, even if we put that aside and look at the remaining conditions that have been attached to control orders and which could be attached equally under the provisions in the non-exhaustive list, we can see that they are very tough. All 18 of the people subject to control orders must permit entry to their homes to police officers and persons authorised by the Secretary of State. Of those people, 16 have had to surrender their travel documents and must not leave the UK. I am sure that that provision would be permitted under clause 6(3)(f) because it has a specific requirement in relation to an individual’s travel.

More than half of the people subject to control orders have to wear an electronic monitoring tag and report each day to a monitoring company. They are subject to a restriction on communications equipment in their residence. They cannot maintain or use more than one bank account and must provide statementsof that account. They must provide the Home Office with details of their employment and one person has restrictions on the specific type of employment in which he can engage.

The last two conditions are particular relevant for the potential operation of serious crime prevention orders. Again, in their White Paper, the Government have been absolutely clear that they wish to employ such measures if serious crime prevention orders are to operate successfully, and state:

“Given the acquisitive nature of organised crime, it is particularly important to be clear that the court could impose particular restrictions on the subject’s financial dealings, including for example requiring them only to use notified financial instruments (credit cards, bank accounts) and restrictions on the amount of cash they are permitted to carry.

We are also keen to ensure the orders include a power either compulsorily to purchase businesses or property or otherwise to require individuals to divest ownership of certain possessions which have been used to facilitate serious crime.”

We are talking about two potential scenarios under which those immensely onerous conditions could be attached. One is the scenario to which the Minister referred this morning, which is when people have been convicted of serious crimes. The Bill would give the courts the power to impose orders alongside the conviction that would prevent them from engaging in criminal activity.

Let us put that on one side for a second and focus on the second category of people who could be subjectto those incredibly onerous conditions. Such people need not have committed any criminal offence. We understand that. As I pointed out before lunch, there is no necessity under this legislation for the courts to consider the alternative of prosecution. There is that legal necessity in relation to control orders and the Prevention of Terrorism Act. It is not written into this legislation. The Minister assures us that these measures are not intended as an alternative to prosecution, but the authorities are not required to surmount any hurdle—as they are in relation to control orders—which requires them, in association with the chief of police, to examine whether there is sufficient evidence to mount a prosecution.

Therefore, the individuals concerned may not have committed an offence. They may have engaged only in conduct that facilitated the offence. As we discussed this morning, that conduct might merely have been one of omission. The definition of serious offence, which they may be said to have engaged in, can be made by the court. It may be something that the individual was not even aware was an offence.

Vernon Coaker (Labour, Gedling)

Without repeating the debate that took place this morning, it is simply not the case that someone could be made the subject of a serious crime prevention order because of an omission, or because they have forgotten to do something. If such a case were to get to court, it would fail the test of reasonableness. The respondent could say, “Nobody told me.” If they demonstrated that to the court, the court would throw it out. One can make these arguments, but it is not the case that it will happen.

Nick Herbert (Conservative, Arundel and South Downs)

I said that the person in question might not have done something, but they might have committed an offence of omission. That is accordingto the legislation as it is drafted. The defence of reasonableness would be one that the person in question would have to mount. The burden of proof moves on to that person.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

There may be another point that my hon. Friend would like to make. In cases of omissions, it is not open to the respondent to say that the omission was reasonable. Subsection (2)(a) refers to an act, and an omission is not an act. [Interruption.]

Nick Herbert (Conservative, Arundel and South Downs)

Yes, I think clause 39 specificallysays that an act is to include an omission, and that is part of the problem with the definition. Omissionsare included in the legislation. Before the Minister intervened, I was making the point that in additionto all of these circumstances under which a person could arrive at the situation in which a serious crime prevention order is being placed upon them, the evidence that has been assembled could be hearsay evidence.

Geoffrey Cox (Conservative, Torridge and West Devon)

The Minister is almost certainly right. If it were a single incident of omission, it is highly unlikely thata judge would say that one of these orders was proportionate. Let me propose to my hon. Friend, and perhaps he might suggest it to the Minister, that thereis a situation in which a bookmaker or a bureau de change had, on four or five occasions, been proved to have accepted criminal money, not knowingly but simply because their systems were weak and they had been negligent in the way that they had approached it. They might well be subject to requirements under such an order, which could be in relation to the way that they conducted their business in future.

Nick Herbert (Conservative, Arundel and South Downs)

I am grateful to my hon. Friend and I look forward to the Minister’s response. The evidence that will have been adduced to require this person potentially to answer for their conduct, which could be an act of omission, could be hearsay evidence. It is the Government’s categorical intention to allow the use of hearsay evidence. They wish to pursue the remedy of a civil order—giving rise to a quasi-criminal prevention order with the sanction of a criminal offence should it be breached—precisely so that hearsay evidence can be allowed. All of those things could happen, but under clause 6(3) a person could still end up attached to a set of conditions amounting to a deprivation of libertyas serious as if that person had been convicted in a criminal court and sentenced to a term of imprisonment. And that is entirely setting aside the ignominy that would be attached to that individual should an orderbe made.

It is worth reflecting on what Lord Carlile said about the operation of control orders in his second report, published on 19 February:

“The key to the obligations is proportionality. In each case they must be proportional to the risk to national security presented by the controllee. The minimum obligations consistent with public safety are the only acceptable basis for control orders.”

But we have already faced Government arguments rejecting that test of proportionality being built into the legislation. In this indirect acquisition of a serious crime order, the burden lies on the defendant to show that his conduct was reasonable. There is no test of proportionality required of the court in the execution of the orders.

Ian Lucas (Labour, Wrexham)

I am listening carefully to the hon. Gentleman, but I cannot understand why he is continually referring to control orders in our debate on serious crime orders. One is an executive order, in particular circumstances, and the other is the proposal before us, which we are debating.

Nick Herbert (Conservative, Arundel and South Downs)

Oh dear. I think that the hon. Gentleman has missed the point. Let me try and explain—none of the hon. Members was present on Second Reading, when the issues were discussed extensively. The orders are directly analogous to control orders. The origin is exactly the same: a determination by the Government to use a civil procedure to effect a criminal enforcement. The process began with ASBOs, moved to control orders, has now moved to serious crime prevention orders and, if the previous Prime Minister’s pledge is to be honoured, will move to violent offender orders. The principle underlying all the orders is the same: evidence falls short of the ability to mount a criminal conviction, so the Government seek an alternative way of restraining the individuals. That alternative is to use a civil procedure, with a lower evidential standard than in criminal proceedings, but with a criminal condition attached. The new orders lie at the boundaries between civil and criminal legislation.

With respect to the hon. Gentleman, it is important to understand the association that control orders have with serious crime prevention orders. He is absolutely right that there is a difference—examined this morning—between the imposition of serious crime prevention orders by the court and the application by the Secretary of State to make a control order. However, there are also ways in which serious crime prevention orders have a more serious effect than control orders, one of which I have already alluded to: the control order legislation includes the test that a prosecution should have been mounted. The order cannot go ahead unless that test is fulfilled. That test is absent from the legislation on serious crime prevention orders.

Joe Benton (Labour, Bootle)

Order. I believe that this morning’s debate on clause 5 discussed reasonableness, proportionality and intent at great length. Clause 6 is about the types of provision that can be made. There is a danger that we are going over old ground, which I merely point out at this stage.

Nick Herbert (Conservative, Arundel and South Downs)

I accept your advice, Mr. Benton, but I was simply answering a question. I have tried to direct my remarks to the comparisons of the specific requirements that may be made under the control order regime as can be made under this regime of serious crime prevention orders. It is important that we understand what kind of restrictions could be made, how they could operate and how successful they may be; because the terms of the amendment are that there is a non-exhaustive list of prohibitions and restrictions which also apply under the control order legislation.

Vernon Coaker (Labour, Gedling)

The hon. Gentleman is supportingthe amendment, which would make an exhaustive list available to the court. If that exhaustive list was placed in clause 6, what would happen if the court wanted to impose a less restrictive condition?

Nick Herbert (Conservative, Arundel and South Downs)

The Minister will have gatheredby now that, since he has accepted none of our amendments to build in safeguards to the operation of these orders, we are searching for any way in which their impact can be safeguarded in future parts of the legislation. That is not a surprising thing for us to do. The legislation is currently immensely wide in its ambit—there are no restrictions placed on it. If the Minister thinks the terms of our amendment are unhelpful and that there is some other way in which this could be safeguarded then I would be happyto listen.

Vernon Coaker (Labour, Gedling)

I was just pointing out to the hon. Gentleman the difficulty of the amendment. If the court is required to consider an exhaustive list with no flexibility or discretion, then if it wished to impose a lesser restriction because it was appropriate to that individual case, it could not be done.

Nick Herbert (Conservative, Arundel and South Downs)

I do not accept that argument inthe first place and it cannot be used to justify a non-exhaustive list. If that was the case, why have a list at all, other than to indicate the kind of measures that could be made? Following the logic of the Minister’s argument, why not make the legislation the same asin ASBOs, which have a test of necessity? Under section 1 (6) of the Crime and Disorder Act 1998, the requirement for the issuing of ASBOs says:

“The prohibitions that may be imposed by an anti-social behaviour order are those necessary for the purpose of protecting from further anti-social acts by the defendant”

There is no list—exhaustive or otherwise—of the kind of prohibitions that may be made. We are well aware of the creativity of the courts in the operation of ASBOs over the past two years. That may be acceptable for ASBOs, which are much lower level remedies, but in our judgment it would not be acceptable for these orders which can impose punitive restrictions.

Simply describing these measures as serious crime prevention orders does not necessarily mean they will operate as prevention orders, because the kinds of measures included in here are punitive. That is why it is necessary to define much more carefully what kindof measures could be made. The Government have already conceded that its initial attempt in this legislation to set up the possible range of measures was far too broad. They conceded an amendment tabled by the official Opposition in the Lords in relation to the discretion of law enforcement officers in this manner. But the fact that these are only examples means that there could be almost any other similar restrictions placed upon us. That gives rise to too much uncertainty.

This legislation is not specific or clear enough. The example of control orders and a control order regime, the collapse of the various restrictions that have been placed upon people, the testing of those restrictionsin court, the fact that the control orders have been breached—none of these things have given us confidence in the potential for successful operation of these restrictions and certainly not that the civil liberties of the people concerned will be properly safeguarded.

Jeremy Browne (Liberal Democrat, Taunton)

I welcome you to the Chair, Mr. Benton, for this sitting. I rise in support of the amendments tabled by the righthon. and learned Member for Sleaford and North Hykeham. I shall first set my reasons in context, trying not to stray too far—or indeed at all—beyond the narrow confines of the debate.

There is a fundamental ideological difference between people in my party—and, by extension, Conservative Members present—and Labour Members. I start from the assumption that everyone is born free, and that only in the most essential circumstances should the state seek to curtail their liberties. By contrast, I think that a lot of Labour Members—maybe this is why we have difficulty reaching consensus—start with the assumption that the state is essentially a benign force, and that we must justify as individuals any freedoms that we wish to exempt from the ambit of state authority. If they start from that assumption, their point is understandable—that somebody might at some point do something that they disapprove of, and that the best bet is therefore to restrict that individual’s liberties as soon as possible to ensure that the chances of their doing it are minimised. I do not take that as my starting point. I say in a spirit of concession that if Labour Members do not understand the fundamental attachment to liberty that is the starting point for my political beliefs, I can see why they would have difficulty realising why I object to the clause, and indeed to large parts of the Bill, and why I support the amendments.

I shall discuss a few specific concerns. I am particularly attached to the amendment that would make the clause more specific, because it seems strange for legislation merely to list examples of sanctions that may be used against the individual. On that basis, I cannot see why any Government would ever try to frame legislation in specific, watertight terms that the individual citizen can understand. Why bother listing any examples at all? Why not give untrammelled power and authority to the state through the courts to implement any measure that it sees fit?

Individual citizens of this country are entitled to know when they read the laws, and when they send us here as Members of Parliament to frame those laws, that we will make them sufficiently specific that they will know where they stand in terms of their rights and duties as citizens of this country. Merely to state examples that do not create that degree of certainty must be of concern to them, and to me as a member of this Committee.

I said earlier—this was a point of contention with the Minister, or possibly another Labour Member—that the measures given as examples would restrict the liberty of the individual to a point as close as possible, short of imprisonment, to containing it absolutely. That point was disputed by an hon. Member—I cannot remember which one—who appeared to imply thatthe measures were less harsh than that. But they are extremely widely drawn.

I turn, for example, to clause 6(3)(e), an example of the

“prohibitions, restrictions or requirements that may be imposed on individuals”.

They include

“the use of any premises or item by an individual”.

The term “any premises” is pretty widely drawn. I do not know how “premises” will be interpreted—whether it will include any building, or any building that people go to sleep in—nor “any...item” of any sort. That is just one example.

Another is “an individual’s working arrangements”. That is widely drawn as well. I do not know whetherit will restrict travel arrangements, for example—although travel is captured in paragraph (f) as well:

“an individual’s travel (whether within the United Kingdom, between the United Kingdom and other places or otherwise).”

The whole clause is drawn up in the most wide-ranging and unspecific terms. That means that it is so general that it leaves the individual citizen far from certain about what sanctions exist, if they were to transgress.

The list I touched upon merely consists of examples, so harsher measures may well be put in place thanthe ones before us. Starting from the assumption that the individual citizen is a free man or woman and that the state must seek to curtail their liberty only in the most exceptional circumstances, it is only reasonable that the state must do better in describing what that curtailment will involve than a list of widely drawn examples.

Ian Lucas (Labour, Wrexham)

I had not intended to contribute to this debate, but I am motivated to do so because of the grotesque characterisation of the views of the Labour party and my hon. Friends that we have just heard. I say to the hon. Gentleman that I am a great admirer of John Stuart Mill and his essay “On Liberty” and, in particular, his distinction between self-regarding and other-regarding actions. I support the central thrust of the legislation because I regard the acts that are prevented by serious crime prevention orders as acts that amount to other-regarding actions, thus entitling the state to intervene for the benefit of society as a whole.

Vernon Coaker (Labour, Gedling)

Good afternoon, Mr. Benton. It is nice to welcome you back to your second sitting of the Committee. I also welcome all other hon. Members to the Committee this afternoon.

I was just looking for a particular clause—I think that it is towards the end of the Bill. With respect to the remarks made by the hon. Member for Taunton on the protection of civil liberties, which are relevant to clause 78, I look forward to him voting to delete that clause, given that the Lords, including the vast majority of Conservative and Liberal Democrat peers, has put in what most of us would regard as a step too far for civil liberties. Under that measure, a police constable could close off a whole area and stop and search anyone on the mere suspicion that a gun is in that area.

With clause 74, as with clause 6 and the amendment, there is always a balance to be struck. My hon. Friend the Member for Wrexham made that point, and indeed, I made it this morning. To be brief about it, because this goes to the core of the Bill, we seek to prevent crime and to reduce harm. We do that, to a certain extent, by curtailing an individual’s civil liberties, following the successful application for a serious crime prevention order in the High Court. We do that to protect the civil liberties of the wider public and those suffering as a consequence of serious crime.

As I have said, the Government believe that inthe vast majority of circumstances serious crime prevention orders will be given alongside a criminal conviction, and we would expect criminal conviction to take place. That is why the applicant authorities for serious crime prevention orders are the prosecuting authorities, which will be best placed to know whether they should be pursuing a criminal prosecution or, following that prosecution, whether it would also be appropriate to pursue a serious crime prevention order.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I am grateful to the hon. Gentleman for giving way. I will put my question to him now, so that time is given for advice to be tendered before he finishes his speech. In an intervention on my hon. Friend the Member for Arundel and South Downs, he said that the Government wanted a non-exhaustive list so that a court could impose a more lenient condition than that set out in clause 6(3). Would he care to give an example of the kind of lenient order that does not fall within the examples set out in clause 6(3)? I do not expect an immediate answer because that would be unfair, but I hope that after he has received some advice he will give us illustrations.

Vernon Coaker (Labour, Gedling)

The answer to the right hon. and learned Gentleman’s point is simply that we do not want to fetter the discretion of the court. I was making the point that if there is an exhaustive list of conditions that the High Court has to take account of, which it can use with regard to the respondent or the subject of a serious crime prevention order, the court has no discretion.

My point about things that are not part of the exhaustive list, whether they are more or less severe penalties, is that discretion should be available to the court. In my view, the vast majority of courts and High Court judges prefer that type of discretion. The judiciary often says, whether in the civil or criminal part of our system, that to deal appropriately with individuals or cases before it, it needs flexibility and discretion. I do not always listen to the judiciary, but that is a perfectly reasonable point and it is what we have tried to achieve.

I want to say a little about control orders. I am sure that all hon. Members know this, but it is important for the record to draw out some of the differences between control orders and what is being proposed. I agree with my hon. Friend the Member for Wrexham; we are discussing serious crime prevention orders. Conjuring up images of control orders makes for a good debating point, but these are serious crime prevention orders and will deal with completely different types of situations.

I will concede to the hon. Member for Arundel and South Downs that the two are similar in a couple of regards, but those similarities are limited. They are both civil orders, breaching either is a criminal offence and they are both preventative. However, serious crime prevention orders are very different from control orders in the following respects and this is what my hon. Friend the Member for Wrexham keeps pointing out. Non-derogating control orders are made by the Secretary of State with the permission of the court. There is an almost political input into the decision. That is not the case with serious crime prevention orders, which are a function of the judiciary and the court, not of any Minister. No Minister has any input into whether a serious crime prevention order is made. It is purely a judicial decision, and that is absolutely right.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Will the hon. Gentleman give way?

Vernon Coaker (Labour, Gedling)

I will just make a couple more points. Control orders have closed hearings, unlike serious crime prevention orders; they have special advocates, unlike serious crime prevention orders; they are aimed at terrorism, unlike serious crime prevention orders; they can be made without notice to the subjects, unlike serious crime prevention orders; and, intercept evidence can be used in closed control order hearings, unlike with serious crime prevention orders. I know that you will rule me out of order if I go down this route too far, Mr. Benton, but I think it important to put on the record the real differences between control orders and serious crime prevention orders and to support the point that my hon. Friend the Member for Wrexham has made.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Of course, the Minister is quite right in saying that a serious crime prevention order will be made by the court, but I am sure that he would be the first to concede that the terms of the order being sought will, at least initially, be outlined by the enforcement agency, whether it be the Director of Public Prosecutions or the Director of Revenue and Customs Prosecutions. Therefore, the Executive will be proposing the terms of the order to the court, albeit—I am happy to acknowledge—that the ultimate shape of the order is a matter for the court.

Vernon Coaker (Labour, Gedling)

Absolutely. The final decision will be a matter for the court. I am making it very clear to the Committee that, unlike with control orders, where the Secretary of State has an involvement—in other words, a political person—the issuing of serious crime prevention orders is a judicial process, which determines whether or not somebody should be the subject of an order. That is one of the most fundamental differences that we can draw attention to.

Kali Mountford (Labour, Colne Valley)

Is my hon. Friend as concerned as I am that analogies were being drawn with ASBOs? The real difference with ASBOs is the behaviour involved. With ASBOs, of course, the behaviour that we are trying to prevent is antisocial behaviour; in this instance, the behaviour that we are trying to prevent is serious crime. That distinction should also be drawn.

Vernon Coaker (Labour, Gedling)

Again, my hon. Friend makes a good point, one that reinforces continually the point that I need to make, which is that this is a civil process and this is a civil order, and it is not a part, in any way, of the criminal process.

Nick Herbert (Conservative, Arundel and South Downs)

The Minister correctly draws attention to the specific differences between control ordersand the proposed serious crime prevention orders. However, would he not concede, in all fairness, that in the Government’s own White Paper, “New Powers Against Organised and Financial Crime”, a clear link is traced between the development of these civil orders, both ASBOs and subsequent civil orders, and that analogies are drawn with the control orders? Therefore, to suggest that it is not appropriate to discuss thetwo alongside each other is, perhaps, rather unfair to our party.

Vernon Coaker (Labour, Gedling)

May I correct something that I have meant to correct for a long time? The hon. Gentleman gives me a good chance to do so. That paper was a Green Paper; I just put that point on the record, as a fundamental point of this debate. It was a Green Paper and we moved straight from it to the Bill.

I would like to point out to the Committee, and indeed to the hon. Gentleman, that I felt that in his remarks he was trying to draw a picture that suggested that serious crime prevention orders were, given the nature of the restrictions that could be placed on an individual, very similar to control orders. For the benefit of the Committee, I was trying to draw out the differences between serious crime prevention orders and control orders.

I would ask the Committee to resist these amendments, because they go completely against the point of these orders, which is to encourage an innovative and effective approach to preventing the harm caused by serious crime. Amendments Nos. 96 to 102 would have the effect of making the examples of potential conditions for orders that are set down in clause 6 an exhaustive list. Potentially, that would have the perverse effect, as I have already said, of stopping the courts from imposing a less onerous order on the subject than the examples set out in clause 6, even ifit would have the potential to reduce harm more effectively.

We all know how innovative and adaptable serious criminals can be; we need to provide law enforcement with the means to be just as adaptable in response. Clause 6 provides guidance to the courts, by setting out the types of conditions that we envisage might be used. It is unlikely that the courts will go beyond the conditions set out in clause 6, but it is vital that we do not hamper their discretion to do what is most effective in the circumstances of the cases before them.

Geoffrey Cox (Conservative, Torridge and West Devon)

Does the Minister envisage that the powers available to the judge under clause 6(3) would include the imposition on an individual of some form of personal restraint, for example an electronic tag?

Vernon Coaker (Labour, Gedling)

We do not envisage that electronic tagging should be allowed, no; if we had done so, we would have included electronic tagging in the Bill.

Nick Herbert (Conservative, Arundel and South Downs)

Could the Minister be more specific? Will he tell us whether or not the use of an electronic tag would be permitted by the Bill?

Vernon Coaker (Labour, Gedling)

What I am saying is that we do not propose that electronic tagging should be allowed. If we had envisaged that it would be allowed, it would have appeared in the Bill. If the hon. Gentleman wants me to go further than that, he will get the same answer.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

The Minister is not facing up to his problem, because, as he knows well, the Court can impose any condition and we are only dealing here with examples.

Vernon Coaker (Labour, Gedling)

The right hon. and learned Gentleman is quite wrong in the statement that he has just made. I think that on reflection he will agree that the Court cannot impose any condition that it wants. As he knows, and as I continually repeat, the High Court is a public authority for the purposes of the Human Rights Act. It therefore has to take account of that Act and cannot, as he knows, simply impose any condition that it wants. Although we have listed in the clause examples of conditions that the High Court may impose should it believe that it will prevent crime and reduce harm, it has to take account of the Human Rights Act.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I am sorry to press the Minister on this.It is plain from clause 6(6) that a curfew order canbe imposed. So too, therefore, can a tagging order, because it is necessary to ensure that the curfew order is kept to.

Vernon Coaker (Labour, Gedling)

The right hon. and learned Gentleman is trying in a roundabout way to suggest that the sort of curfew that would be imposed would be almost synonymous with house arrest. That is not the case. As he knows, when imposing a serious crime prevention order on an individual the High Court would not be able to impose house arrest by confining somebody to their house for nearly 24 hours a day. That would not be proportionate or appropriate, and the court will not be able to do that because it must have regard to the Human Rights Act. It simply will not do that. In the very unlikely event that it did, it would be subject to appeal. The High Court is a public authority for the purposes of that Act and will not impose house arrest.

Geoffrey Cox (Conservative, Torridge and West Devon)

With respect, I completely agree that it is a public authority and governed by the principle of proportionality in relation to the invasion of freedom, but a tag can be used to track an individual’s whereabouts, indicate whether he has entered forbidden premises and monitor with whom he associates. There is nothing in the Bill to prevent that, and simply attaching a tag might well be thought much more proportionate than to impose a series of stringent requirements. There seems to be nothing in theclause to prevent a judge, referring to the list of considerations, from saying, “I think we’ll attach a tag to you. That way, we’ll know where you are at any one time and that you aren’t going into particular premises.” I can see nothing to prevent that, and it might well be proportionate in some cases.

Vernon Coaker (Labour, Gedling)

As I have said, we do not propose that electronic tagging should be included in the list. I have said what I want to say on the matter.

Amendment No. 103 perhaps stems from the same concern as was expressed on numerous occasions in another place and repeated on Second Reading in this House. There is a misconception that the clause could lead to the subject of an order being kept under house arrest. I reassure hon. Members that that is absolutely and categorically not the case. Such a restriction would not be compatible with convention rights, so there is no way that the applicant authority would apply for, nor the High Court impose, such an order.

It is possible, however, that a reasonable and proportionate prohibition, restriction or requirement in relation to a private dwelling might be an effective way to prevent harm from being caused by serious crime. We cannot think of everything that might possibly prove in the future to be an effective means of preventing serious crime, and we want the courts to be able to innovate within the framework of the examples set out in the clause. For those reasons, I ask the Committee to resist the amendment if the right hon. and learned Member for Sleaford and North Hykeham does not feel able to withdraw it.

A part of the clause that we have not really touched upon is subsection (5), which specifies that law enforcement agencies can specify certain details ofhow conditions in an order relating to the answeringof questions, the provision of information or the production of documents are to be complied with. There was a great deal of concern about the way in which our policy intent was originally given effect.

May I say to my hon. Friend the Member for Arundel and South Downs and his hon. Friends that, the Bill having gone through another place prior to coming here, I hope he accepts that, although we have resisted a large number of the amendments that heand his hon. Friends and indeed the hon. Member for Taunton tabled, we did listen to a large number of the points that were made in the other place and changed the Bill accordingly. This is one of those areas.

The Government listened to the concerns expressed in another place and acted to address them. The original drafting of this subsection has been tightened considerably.

Nick Herbert (Conservative, Arundel and South Downs)

The Minister has been giving way generously, for which I am grateful. I should like to press him a little further in relation to the power under subsection (6), the conditions that can be imposed on a private dwelling. He said that the circumstances in which restrictions may be made cannot be foreseen and he wanted to give discretion to the court. This is such an important potential measure, however, and one that affects an individual’s home—a place regarded in this country as generally sacrosanct to avoid restricting an individual’s freedom within his or her own home—that it is frankly wrong for the Government not to give some indication of what they have in mind, in terms of the kind or extent of the restrictions that might be possible under this legislation.

I wondered, when the Minister talked about proportionate restrictions, whether he might give this Committee some indication of what kind of restrictions these would be.

Vernon Coaker (Labour, Gedling)

Of course we do not expect somebody, as a result of these serious crime prevention orders, to be restricted to their home for 24 hours. That would clearly be disproportionate. The idea of having curfews is contained in other legislation, such as antisocial behaviour legislation. It is perfectly possible to impose a proportionate and reasonable curfew on someone as a result of an—[Interruption.] I will give way in a minute—antisocial behaviour order. As I say, it is a matter for the courts to determine. We certainly would not expect one or two hours or 24 hours. It may be that somewhere towards the middle of that and lower, may be appropriate.

Let me just read something. I thought this might come up about human rights and so on. Article 8 — Right to respect for private and family life:

“Everyone has the right to respect for his private and family life, his home and his correspondence.”

We all agree with that.

“There shall be no interference by a public authority with the exercise of this right”—

again, we all agree with that—

“except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

My hon. Friend the Member for Wrexham is not in his place, but it does go back to the whole nub of the argument. I do not think the right hon. and learned Member for Sleaford and North Hykeham isarguing the complete opposite of what I am saying. I understand the point he is making. It does mean, however, even within human rights legislation, that it is regarded as acceptable sometimesto impose on an individual quite serious restrictions. The human rights legislation recognises that where it is in the interests of the broader community, where it is in the interests of others, it can be in those circumstances appropriate.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I think perhaps the Minister does not realise how he has undercut his own argument on tagging, because the proviso to article 8 is precisely the provision that the enforcement agencies would rely upon in their application for a serious crime prevention order in support of a tagging provision. They would rely on the proviso, which I happen to have in front of me, in order to support the imposition of a tagging requirement.

Vernon Coaker (Labour, Gedling)

I do not accept what the right hon. and learned Gentleman has just said.

We have had an interesting debate and discussion on this group of amendments and, with the remarks I have made, I ask the right hon. and learned Gentleman to withdraw his amendment or, if that is not the case, for the Committee to oppose it.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I am not going to withdraw the amendment but I do accept that the argument has been thrashed out pretty thoroughly. In the course of my interventions on the Minister I have really put the points I wish to put by way of a response. I am not seeking, as it were, an opportunity to make an extended speech but I will not be withdrawing the amendments.

Clause 10

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I beg to move amendment No. 104, in clause 10, page 7, line 20, at end insert—

‘(1A) No serious crime prevention order shall be made unless the High Court is satisfied that it would be fair to the person making representations under subsection (1) and was proportionate having regard to the interests of that person and to the public interest.’.

Joe Benton (Labour, Bootle)

With this it will be convenientto discuss the following amendments: No. 105, in clause 10, page 7, line 26, at end insert—

‘(2A) No variation of a serious crime order may be made unless the High Court is satisfied that the variation would be fair to the person making representations under subsection (2) and was proportionate having regard to the interests of that person and to the public interest.’.

No. 106, in clause 10, page 7, line 32, at end insert—

‘(3A) No serious crime order shall be discharged, in whole or in part, if the High Court considers the discharge to be unfair to the person making representations under subsection (3) or to any person affected by it, or disproportionate having regard to the interests of any person and to the public interest.’.

No. 113, in clause 18, page 10, line 29, at beginning insert ‘Subject to subsections (4) and (4A)’.

No. 114, in clause 18, page 11, line 4, at end insert—

‘(4A) If a change in circumstances is identified under subsection (4), the court may vary the serious crime prevention order to the extent that the court considers that the order has become unfair to the subject of the order or that the terms ofthe order are disproportionate having regard to that person’s interests or to the public interest.’.

No. 115, in clause 19, page 11, line 41, at end insert—

‘(3A) If a change in circumstances is identified under subsection (3) and the court considers that the order or any provision thereof has—

(a) become unfair to the subject of the order, or

(b) disproportionate having regard to the interests of that person and the public interest,

the court may discharge the order or any provision thereof to the extent that it thinks fit.’.

No. 125, in clause 21, page 13, line 17, at end insert—

‘or if it considers that there has been a change of circumstances and that, by reason of that change, the order has become unfair to any person affected by it including the person who is the subject of the order’.

No. 126, in clause 21, page 13, line 29, at end insert—

‘or by the person who is the subject of the order’.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

The amendments are designed to give greater protection to third parties who are affected by these orders. As suggested in an earlier debate, third parties can be affected, as they may have dealings with a person who is the subject of a serious crime prevention order, and their rights will have been prejudiced bythe order.

The Bill enables third parties to make representations under three circumstances: when the original order is made, when there is an application to vary it, and when there is an application to discharge it. I entirely agree with the proposition that third parties who are affected should have an opportunity to make representations. However, looking at the Bill itself, I find no criteria that would enable the court to determine whether to accede to the representations made by third parties.

The Government are clearly conscious of that point. If one looks at paragraph 3.6 of the Green Paper on page 37, they address the question of what thirdparty rights should be. It refers us to the European convention on human rights: to article 8 on privacy and family life, and to article 1 of the first protocol, which deals with interference with property.

However, I think that we should be more precise. When we are dealing with a matter of this importance the Bill should make the criteria absolutely plain. Therefore, I am trying to incorporate in the Bill a requirement that the order should not be made by the High Court unless it would be fair to the person making the representations, and was proportionate—having regard to the interests of that person and to the public interest—and that similar criteria should be brought into play, mutatis mutandis, on the other two applications to vary and to discharge.

In fact, that would do little more than what the Government say in the White Paper that they want to do. However, I am very reluctant to rely on the convention, because it is expressed in general terms and is not, in my view, sufficiently explicit in the protection that it gives the third parties, and is, therefore, not an adequate safeguard. I very much hope that the Committee will place in the Bill something that would constitute a more effective safeguard for the rights of said parties, whose interests might be quite seriously prejudiced.

Nick Herbert (Conservative, Arundel and South Downs)

I rise briefly to support the amendment. The Minister will know that the rights of third parties was an issue that the Government sought to consult on in their Green Paper, and that it was one of the areas where concerns were expressed aboutthe potential impact of the orders. To be fair, the Government have sought to address the concerns, as has my right hon. and learned Friend.

In responding to the various issues that we have raised, the Minister has relied on the notion of proportionality—that the courts will behave in a proportionate manner. I agree with my right hon. and learned Friend that it would be much more satisfactory if those concepts were written into the Bill, so that we could feel safer about the operation of the orders. Therefore, I hope that the Minister will respond sympathetically to what my right hon. and learned Friend suggests.

Vernon Coaker (Labour, Gedling)

First, I thank the hon. Member for Arundel and South Downs and the right hon. and learned Member for Sleaford and North Hykehamfor the comments that they made about how the Government have tried to respond to the concerns expressed with respect to the matter. I appreciate those remarks.

I am fast becoming something more of an expert on the matter. People joke with me that I will have a wig and gown by the end of the proceedings, although I do not know whether that is appropriate for a civil process. I say that because the process in a civil court comes up in our considerations. The “Civil Procedure Rules”, which, as I understand it, is the bible for civil courts, talks of the overriding objective of the courts. Those rules are a new procedural code

“with the overriding objective of enabling the court to deal with cases justly. Dealing with a case justly includes, so far as is practicable—ensuring that the parties are on an equal footing...dealing with the case in ways which are proportionate”.

That is the way that the High Court judge has to deal with the cases before him. I quoted from the procedure because I think that it is extremely important; it is not just me asserting it. There is a requirement on the High Court to act in a just and proportionate way.

We have discussed in much detail the Government’s confidence in the country’s senior judiciary to act in a way that is fair and proportionate, so I will not go on too long about the amendment. Suffice it to say that I do not feel that we need to include the amendment. As I have pointed out, it would provide an obligation on the courts to act in a way that they are already obliged to do. Clause 10 provides a strong safeguard for those third parties who might be collaterally affected by the provisions of an order. Those third parties have a right to make representations to the court when they would be likely to be significantly adversely affected by the order or, as the case may be, by variation or discharge.

Geoffrey Cox (Conservative, Torridge and West Devon)

Will the Minister clarify a point of doubt I have from reading through the clause? Could a person who did not wish the order to be varied or discharged be heard? Should a member of the public feel, were a serious crime prevention order to be lifted, that they would suffer, would they be able to appear in order to argue for its continuation?

Vernon Coaker (Labour, Gedling)

Yes, they would.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

If the Minister looks at my amendment No. 106, he will find that the point is explicitly addressed.

Vernon Coaker (Labour, Gedling)

Given the way that the court operates, the point made by the right hon. and learned Gentleman is covered; the answer is yes.

In operating that safeguard, the courts will have regard to what is proportionate and fair, whether or not we tell them to do so. The amendments are therefore not needed. I emphasise that my noble and learned Friend Baroness Scotland made it clear in another place that the procedure for the orders would require the applicant authorities to bring to the attention of the court the expected impact of the orders on third parties. Those procedural and legislative safeguards will ensure that the rights of third parties are effectively protected.

In relation to the proposed obligation to have regard to the public interest, the court will already be considering what is in the public interest when imposing the orders. Under clause 1(1)(b), the court will make an order only when it would protect the public by “preventing, restricting or disrupting” involvement in serious crime. Under clause 1(3), the terms of the order must also be appropriate for the purpose of “protecting the public”. For those reasons, I ask the right hon. and learned Gentleman to withdraw the amendment.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I will not withdraw the amendment. Let me make one general point.

Time and again in our debates, the Minister says, “Well, look, the High Court and the Crown courts are bound by certain duties, set out in legislation or the convention, namely to act fairly and proportionately,” and he points to various articles. The logical conclusion of that approach is to assert that we will never need to incorporate the safeguards into legislation becausethe underlying and underpinning legislation already applies across the board. I do not agree with that approach. The safeguards should be incorporated into every Bill under which penalties or evil consequences would follow.

Vernon Coaker (Labour, Gedling)

To clarify matters and to ensure thatI do not misunderstand the right hon. and learned Gentleman, safeguards incorporated are incorporated into the Bill. My understanding is that he does not think they are sufficient. That seems to be the point of disagreement between us.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Forgive me, but in that context we are looking primarily at clauses 7 to 11. Those are procedural safeguards—for example, that an individual must be over 18, or that the said parties have the right to make representations. What is lacking in the Bill is not procedure—the procedure for making representations is provided for—but the criteria on which individuals must rely when seeking to discharge, vary or oppose the making of an order.

I am trying to incorporate into the Bill guidance to the courts, along with the concepts of justice and proportionality. The Minister says in reply that it is quite unnecessary as it can be found in some of the articles of the convention. It is perfectly true that some of the articles of the convention will have an application; I accept that, but I do not accept that it is right to omit such protection from the Bill simply because the relevant provisions may be found within the articles of the convention—which may or maynot apply.

I turn to the McCann case. The Minister will remember that article 6.2 was held not to apply to McCann as it was not a criminal case. The plain truth is that we cannot see clearly, at least not with complete certainty, which of the articles will be applied by the courts—for example, when an application is made by a third party—and which will be disregarded. It is our duty to include in the Bill those safeguards that we deem to be appropriate, and not have to rely on other legislation that may or may not have an impact.

Those are the only points that I wish to make, but I shall not be withdrawing my amendment.

Clause 11

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I beg to move amendment No. 107, in clause 11, page 8, line 7, at end insert—

‘(1A) The subject of a serious crime prevention order is not bound by it unless, not less than 56 days before the date on which the application for the making of the order was heard, the subject was served with a notice setting out the terms of the proposed order together with a copy of all the written evidence and a summary of all the oral evidence that would be relied upon.’.

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss amendment No. 108, in clause 11, page 8,line 11, at end insert

‘but if a court is satisfied that the subject of a serious crime prevention order has not received that notice and is not otherwise aware of its terms, the notice shall be deemed not to have been served.’.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

These amendments have two quite separate purposes. The purpose of the first is that the person against whom the order is sought should be given due notice of the terms of the order and of the evidence that is to be relied upon. The purpose of the second amendment, differently, is that in appropriate circumstances the deemed notice will be disapplied.

May I explain briefly what I have in mind? It is a matter of natural justice that a person against whom an order is sought should be told in good time the terms of that order. It is in accordance with the principles of natural justice that the prospective subject of the order should have a clear indication of the nature of the case being put against him—or her—so that he can respond to it.

It is not clear from the Bill what the procedure will be for giving notice of the orders sought for satisfying the court of the requirements. The Bill is silent on that point; perhaps rules will be made later that will give guidance. However, as a matter of general principle, due notice should be given of the terms of the relief being sought and of the nature of the evidence.

The second amendment relates to the effect of the notice. There is a provision for deemed notice, which is to be obtained by sending it by recorded delivery tothe last known address. Consequences flow from that, namely, that the person is bound by the order and if that person is in breach of the order, penal sanctions attach.

However, there may well be wholly reasonable circumstances when, notwithstanding the fact that the notice was sent to the last known address, it was not received. The person who was the subject of the order but who did not receive it should be given the ability to go to the court and ask for the notice to be disapplied. I am prepared to accept that this is one area in which the reverse burden of proof is probably appropriate, and the onus of proving non-receipt should lie with the person to be affected by the order. In terms of natural justice, both the provisions, or something like them, should be incorporated in the Bill.

Vernon Coaker (Labour, Gedling)

If the right hon. and learned Gentleman will bear with me, I may say something at the end of my remarks that will be helpful to him, to show that we try to listen—

Crispin Blunt (Conservative, Reigate)

Why not say it at the beginning?

Vernon Coaker (Labour, Gedling)

Mr. Benton, I have pointed out the number of times we agreed with the Opposition in the House of Lords and amended the Bill accordingly. We tabled an amendment on armed robbery, which we included in the schedule. The schedule was voted against, even though it included something that the Opposition wanted. I was about to say something reasonably positive to the right hon. and learned Gentleman and I get scoffed at—my confidence is seeping away as we continue.

On amendment No. 107, the civil procedure rules provide for notice to be given to the proposed subject of an order when an application for an order has to be made. Under those general rules, the notice period is usually three days. I am afraid that—this is where I differ with the right hon. and learned Gentleman—I cannot support the idea of acquiring a notice periodof 56 days because I believe that that would be impractical. It could have the perverse effect that, where an order could prevent an immediate harm, law enforcement and the applicant authority would have to wait nearly two months before they could seek an order in the High Court. The people who might be harmed by the serious criminal behaviour that the order is designed to prevent would want us to accept that such a delay in preventing harm was inappropriate.

I am confident that, as part of giving effect to the overriding objective, an adjournment could be granted, if to do otherwise would cause injustice. However, with regard to the right hon. and learned Gentleman’s amendment, we will consider what an appropriate period of time would be. It might be that three days is too short, although we feel that 56 days is too long.We want to consult the applicant authorities andother authorities. We would like him to withdraw the amendment, with my commitment that we will look at the issue. However, to be clear, we think that 56 days is too long.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

The Minister might be right in saying that 56 days is too long; I can see arguments against me on that point. I would also be pleased to know whether his commitment extends to giving notice of the evidence on which the application would depend, because there is no current obligation for the authorities to tell the prospective subject of the order what that evidence is.

Vernon Coaker (Labour, Gedling)

The right hon. and learned Gentleman is pushing it now, and all I can say is that I havemade a commitment with respect to the amendment. Without making a commitment, I will look at the second point that he made with respect to the amendment.

Amendment No. 108 focuses on the requirement in clause 11 that an order cannot take effect unless the subjects have either been given a notice setting outthe terms of the order or were represented at the proceedings at which the order was made. Under the amendment, no notice would have been given if it could be shown that the notice was not received. The provision is not necessary because section 7 of the Interpretation Act 1978 already makes provision about the service of notices in the post. In particular, it provides that the rules on service by post will not apply if it appears that a notice served by post was not received. Having made those comments, I wonder whether the right hon. and learned Gentleman would consider withdrawing his amendment.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Breaking the habit of a lifetime, I intend to be collegiate.

Crispin Blunt (Conservative, Reigate)

But not a team player?

Douglas Hogg (Conservative, Sleaford and North Hykeham)

But not a team player. I understand the point about 56 days and I am perfectly prepared to accept, as I have already indicated, that the Minister might be right in saying that 56 days is too long. I very much hope that the Minister will accept that natural justice requires that the person who is made the subject of the order knows the nature of the case and, preferably, the evidence that is relied upon when the order is sought. But in the spirit of non-team-playing collegiate behaviour, without prejudice to what I may do on Report, I beg to ask leave to withdraw the amendment.