Serious Crime Bill [Lords]

Public Bill Committee, 3 July 2007.

John Bercow (Conservative, Buckingham)

I should like to begin this morning’s proceedings by welcoming new members of the Committee, including, and perhaps in particular, the new Minister on the Front Bench, the hon. Member for Liverpool, Garston (Maria Eagle), and the hon. Member for Hornchurch (James Brokenshire) on the Opposition Front Bench. Members of the Committee will see from the amendment paper that several amendments have been tabled in the name of Mr. Nick Herbert. Those amendments can, of course, be moved by another hon. Member and they will be moved by the hon. Member for Hornchurch at the appropriate time.

Clause 14

James Brokenshire (Conservative, Hornchurch)

What an unexpected pleasure it is to serve under your chairmanship, Mr. Bercow, on yet another occasion. It has been a great privilege to do so in the past. I shall try my best to ensure that I do not go over any ground that has been referred to before in Committee and I hope that, should I dare stray into that territory, I shall be reminded by the Chair. I shall try to avoid it happening.

The clause relates to the application of serious crime prevention orders in the context of excluded material and banking information. The provision makes it particularly clear that a serious crime prevention order can be used to obtain certain documentation relating to banking business. My questions for the Minister concern the discussions that have taken place with the banking industry or other regulators about the application of the provision. Given this country’s obvious reliance on financial services and balancing the need to ensure that effective measures are in place to control the activities of serious organised criminals, we must have some certainty that industry understands what is going on and what the expectations are.

My reading of the Bill suggests that there could be extraterritorial application and that an international bank could be subject to an order if it were felt that a protective measure was required to prevent someone from committing a serious criminal offence in this country. I understand the intent behind the provision, and the meaning of subsections (3)and (4) under which

“Condition A is that the person to whom the obligation of confidence is owed consents”,

is straightforward if someone has consented to the provision of information required under an order. However, subsection (4) has a wide ambit and says that, if the order requires certain documentation to be provided, in essence the bank or financial institution would have to comply.

It is a matter of clearly understanding the position of the banking industry and commerce. Given the potential sanctions for breach if a bank, company or financial institution were to fall foul of the clause, it would be helpful if the Minister could set out in more detail the application of the clause, and what consultation has taken place with and what representations have been received from financial service institutions as well as from regulators here or internationally that may have been involved in the preparation and consideration of the clause.

Vernon Coaker (Labour, Gedling)

Mr. Bercow, in the light of your comments, I wish also to welcome a few members to the Committee and make one or two other comments. I should be grateful if you would allow me to indulge you and the Committee. I congratulate those members of the Committee who have now moved on—[ Laughter.] I hasten to add that they have moved on in a positive sense. I am pleased that my hon. Friend the Member for Bradford, South (Mr. Sutcliffe) now has the post of the Under-Secretary of State for Culture, Media and Sport; and I am delighted for my hon. Friend the Member for Mitcham and Morden (Siobhain McDonagh) and the new Under-Secretary of State for Communities and Local Government, my hon. Friend the Member for Hartlepool (Mr. Wright). The Committee’s debates have been of a good-hearted nature, but they have been challenging and have given the Bill proper scrutiny. In that spirit, I ask the hon. Member for Hornchurch to pass on my congratulations and best wishes to the hon. Member for Arundel and South Downs (Nick Herbert), who has been promoted.

I welcome my hon. Friend the Member for Liverpool, Garston. I also wish to mention the hon. Member for Reigate and the Lord Commissioner of Her Majesty’s Treasury, my hon. Friend the Member for Tynemouth, who are staying put. If it is not too self-indulgent, may I congratulate myself on staying put?—[Interruption.] It is very self-indulgent. I also welcome my hon. Friends the Members for Stourbridge and for Vale of Clwyd and, lastly, the hon. Member for Hornchurch to the Committee. I wish him well in navigating his way through the Bill.

I am also pleased to see that you are still chairing the Committee, Mr. Bercow, with Mr. Benton.

I start by saying that the measures in clause 14 have been discussed with the British Bankers Association. It has commented on the clause, and the Government have taken account of what it has said; it is perfectly happy with the clause. I hope that that offers the hon. Member for Hornchurch reassurance on that question.

The clause provides that a person cannot be required to produce excluded material under a serious crime prevention order; and that a person cannot be required to provide information in relation to which

“he owes an obligation of confidence by virtue of carrying on a banking business unless”

one of two conditions is met. The first condition is

“that the person to whom the obligation of confidence is owed consents to the disclosure”,

as the hon. Gentleman pointed out. The second condition is that the order requires the disclosure of specific information, or disclosure of a particular kind of information and that the confidential information is of that type.

That is an important safeguard. A serious crime prevention order should not be capable of requiring the disclosure of excluded material. In addition, an order should not be able to require the disclosure of information

“in respect of which...an obligation of confidence”

is owed

“by virtue of carrying on a banking business”

unless a court has given permission for or has specifically considered its disclosure and concluded that disclosure is appropriate.

The Government have said throughout the passage of the Bill that it is important to recognise that the court must always act fairly and proportionately, and it will have to do so on the disclosure of information under the clause.

James Brokenshire (Conservative, Hornchurch)

I welcome the assurance on the preparation of the clause and the consultation with the BBA—it is helpful to have that on the record. Was any consideration given to the international aspects of the provision? The BBA was consulted, but did the Government look at the matter from an international angle? Will the measure have applications to banks outside the UK?

Vernon Coaker (Labour, Gedling)

We are not sure that that would be necessary under the clause. We are dealing with the prevention of crime in this country, which is why we negotiated with the BBA.

James Brokenshire (Conservative, Hornchurch)

Just to clarify, it is not inconceivable that someone intent on committing a crime in this country might seek to use banking services overseas. Will the Minister tell us whether that has been contemplated, so that we can understand the breadth and ambit of the measure? Will the measure apply only to UK banks and financial institutions or could it have wider application to overseas entities, particularly as we know that, in this age of internet banking and other types of trading of finance, it is not impossible for a financial institution outside the UK to be used for improper purposes?

Vernon Coaker (Labour, Gedling)

The hon. Gentleman is making a reasonable point. My understanding is that our particular concern was with respect to British banks and financial institutions, but I will consider that point and, if necessary, come back to the hon. Gentleman.

James Brokenshire (Conservative, Hornchurch)

I thank the Minister for his assurance that he will look at the matter in greater detail.

I welcome to the Committee the hon. Member for Liverpool, Garston and congratulate the Minister on holding his position and his clear modesty in that respect. I also congratulate the other Committee members who have gone on to greater things. I will certainly pass on the Minister’s kind wishes to my hon. Friend the Member for Arundel and South Downs, who is now the shadow spokesman for Justice, in the spirit in which they were expressed.

Clause 15

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I beg to move amendment No. 109, in clause 15, page 9, line 29, at end insert

‘or non-disclosure is authorised under any other enactment’.

Like my hon. Friend the Member for Hornchurch, may I congratulate the Minister on surviving the reshuffle? It is always a relief. I remember those days when I had to await the summons.

May I also congratulate the hon. Member for Liverpool, Garston on taking up her post and my hon. Friend on leading the Opposition in Committee? I look forward to working both for and with him. Let us hope that he votes for my amendments in the way that his predecessor did not always do.

Amendment No. 109 is fairly uncontroversial. It is made to avoid the problems of unintended consequences. It relates to serious crime prevention orders not requiring people to disclose protected documents. At the moment, that protection is limited to disclosure where disclosure is prohibited under any other enactment. It occurred to me that there might be a range of documents where non-disclosure is authorised by any other enactment. I think that there is a slight difference. In order to guard against the law of unintended consequences, we should build in that protection. If the Minister assures me that there is no difference from the present wording in the Bill, I will be reasonably satisfied. However, I personally think that there is a difference.

James Brokenshire (Conservative, Hornchurch)

I support the amendment. As always, it is a question of carefully analysing the context and consequences of these provisions. If the Minister can give some assurance or comfort in relation to the detailed and technical point that my right hon. and learned Friend has highlighted, it would benefit the considerations of this Committee and the understanding of the Bill.

Vernon Coaker (Labour, Gedling)

I hope that my brief comments on amendment No. 109 will reassure Opposition Members.

Clause 15 provides an important safeguard. We do not intend such orders to cut across any prohibitions on disclosing information that might be contained in other legislation. However, the amendment goes further. It means that in cases in which there is a discretion or restriction on disclosure in another piece of legislation, such disclosure could not be provided for by an order. Discretions or restrictions are specifically drafted as such because disclosure might be appropriate in some instances. I do not think it necessary to extend the provision into such areas; the High Court will be able to decide whether the circumstances of a case make disclosure appropriate.

In addition, clause 37 includes a protection for anyone making such a disclosure. That ensures that actions for breach of a restriction on disclosure cannot be brought against the subject of an order. I hope that, with that reassurance, the right hon. and learned Member for Sleaford and North Hykeham will feel able to withdraw the amendment.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I remain uneasy. I shall not press the amendment to a Division but it would be helpful to have examples of the instances of discretionary power to withhold that the Minister says exist in legislation. That would put the Committee in a better position to determine whether it wants to insist on the provision, either on Report or in another place. If the Minister can give us an example now, so much the better, but I shall understand if he cannot; the matter is complicated and I would not blame him for not being able to do so. I would, however, expect to have some examples later. If he would be good enough to write to me, we could reflect on the way forward. On that basis, I beg to ask leave to withdraw the amendment.

Clause 17

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I beg to move amendment No. 110, in clause 17, page 10, line 15, leave out ‘5 years’ and insert ‘1 year’.

John Bercow (Conservative, Buckingham)

With this it will be convenient to discuss amendment No. 176, in clause 17, page 10, line 22, leave out ‘5 years’ and insert ‘1 year’.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I know that the amendments have the support of my hon. Friend the Member for Hornchurch. I return to the fact that the orders are pretty draconian. We have already argued that point in this Committee and it is generally agreed that they are potentially extremely serious. That being so, one has to ask for how long they should run. We would not necessarily be dealing with people who had committed criminal offences. Some would not have done—I refer to the facilitator. The restrictions that might be contained in the order are specified in clause 6, and they are pretty widespread; they touch on almost every aspect of people’s ordinary lives. The Minister says that they are not punitive but preventive. That is true as to their purpose, but they can plainly be used in a punitive way. Equally plainly, they can have penal consequences. For the reasons that I have already argued in this Committee on many an occasion, I do not think that the safeguards are appropriate or sufficient.

Given that, how long should an order run? The Bill provides for a five-year term—that is the maximum; it would not necessarily be that long—and I believe that that is too long. It should be a lesser period, having regard to all the considerations that I have advanced, hence the proposal that it should be but one year.

James Brokenshire (Conservative, Hornchurch)

I support the comments made by my right hon. and learned Friend on the duration of the orders. As he rightly points out, clause 17(2) provides for an order to run for five years. We should consider whether such a period is proportionate or appropriate in the context of any other criminal law action that might be considered in relation to the circumstances to which the order is subject, and of any uncertainties that might arise.

I note that clause 18 deals with the variation of orders, and in some ways there is an interrelationship between the two provisions. However, it is relevant to consider whether the five-year term currently envisaged is appropriate, given that the potential impact of what may be required would clearly be significant. I think, for instance, of the sorts of provisions contained in control orders; I know that in previous discussions and debates the question was raised as to whether control orders were relevant and appropriate, given the context of orders made under the Bill. A parallel can be drawn between those and control orders and orders for antisocial behaviour, but we want to know in what context it applies to the orders in the Bill.

Certainly all of the 18 control orders that have been issued so far required that the people concerned should reside at a specific residence, and permit entry to police officers and persons authorised by the Secretary of State. Sixteen of those subjected to control orders had to surrender their travel documents and more than half of them had to wear an electronic monitoring tag and had to report each day to the monitoring company; they were subject to restrictions on communications, could not maintain or use more than one bank account and had to provide the Home Office with details of their employment.

In the context of the need to protect the public, I understand the desire to be able to impose such conditions, albeit we have serious concerns about the effectiveness of control orders, given the number that have been breached. However, that is the subject of a separate debate.

Vernon Coaker (Labour, Gedling)

May I place it on the record that, as the hon. Gentleman concedes, we have debated at length the difference between serious crime prevention orders and control orders? However, of the other civil orders accepted by the House, football banning orders run from two to 10 years, and antisocial behaviour orders and sexual offender orders last for a minimum of two years with no maximum. Again, the conditions that can be placed on people the subject of those other civil orders put considerable restraints on them in order to prevent them from offending again.

James Brokenshire (Conservative, Hornchurch)

I thank the Minister for that intervention, but football banning orders and the like have narrow terms of reference. However, I think he accepts that the intention is to provide a degree of scope and flexibility in order to reflect the various circumstances and factors involved in making orders to prevent serious offending.

I understand why the Minister argues as he does, but a balance has to be struck between flexibility and being able to ensure that an element of control can be brought to bear. That is why we suggest a one-year limit. I was drawing a parallel with the control order regime, and although I accept what the Minister said about distinguishing between the two, it is still appropriate to debate the matter. For instance, under the Prevention of Terrorism Act 2005 a non-derogating control order effectively lasts for 12 months, although it can then be renewed. We believe that a parallel can be drawn to ensure that if significant restrictions and restraints are put on a person, there should be at least a 12-month review to see whether those sorts of restrictions were still appropriate given their import and impact.

It is interesting to note that on Second Reading the Minister for Security, Counter Terrorism and Police, the hon. Member for Harrow, East (Mr. McNulty), said that the intent would be that a criminal prosecution would be brought if that was possible. I say to the Minister here that if we had this type of provision, with a 12-month restriction on the extent of this order, at the very least that would provide a mechanism for considering whether a prosecution could be brought at the expiration of that 12-month period or whether it was necessary to continue with a new 12-month order.

So we are not seeking to undermine or challenge the intent behind these provisions. We are trying to ensure that we have, first, an effective mechanism to deal with reviews and, secondly, proportionality in the orders that are granted.

Liberty also highlights the issue of uncertainty about the aspects of the orders that may have been granted and the terms of those orders. It said in its briefing paper:

“The experience of ASBOs and Control Orders reveals several risks about how SCPOs might operate in practice. In particular it suggests that the restrictions imposed on an Order may well be drafted in an uncertain manner; include standard restrictions rather than restrictions which are tailored to each case; and that there will be no regular review of the Order with the result that restrictions will stay in place which are no longer necessary or proportionate.”

Although I understand that it is open to someone to go back to court to seek a variation in the terms of the order, obviously that provision is drafted in a fairly restrictive way, in that the court must be satisfied that certain tests have been passed and that certain requirements apply. If an order was granted for 12 months, that would formally allow a 12-month review of the appropriateness of the terms of the order. Rather than an application by an individual being granted, a 12-month review would provide a mechanism to ensure the appropriateness, and in some ways the certainty, of the terms of the order that is being granted. That may be appropriate not only for the person who is subject to an order but for law enforcement, so that law enforcement officers can ask at the end of 12 months whether the conditions of the order are still applicable or whether they should be looking for something different. A 12-month provision would allow such an analysis to be undertaken, to establish whether the order was operating appropriately.

Vernon Coaker (Labour, Gedling)

Can the hon. Gentleman confirm, for my benefit and that of the Committee, that under clause 18 it is not only the person who is the subject of the order who can apply for variation but the applicant authority? Therefore, if the applicant authority wanted to vary the order, it could do so in six months, 12 months or indeed 18 months.

James Brokenshire (Conservative, Hornchurch)

The Minister correctly states the provisions of the Bill; the applicant authority has that right under clause 18 to go back to the court to vary the order. However, I am saying that this review would be a natural trigger, after a period of 12 months, that would force the authorities to look again, to ensure that what is being sought remains appropriate, and to consider whether any further provisions might be necessary to reflect changing circumstances.

I am sure that these orders would be reviewed by the authorities to maintain their assurance to the public. However, this review would not only ensure that there is a 12-month restriction to see that there is some proportionality in the way that the restrictions are imposed, but would automatically provide a natural review for the authorities to analyse whether the provisions that are being applied are effective or should be modified in any way by means of the renewal of an order, which would perhaps lead to slightly different conditions being applied.

I talked about the issue of prosecution. The Justice briefing note said that, unlike the Prevention of Terrorism Act 2005, the Bill contains no provision for the consideration of whether a criminal prosecution is possible before a serious crime prevention order is applied for, and that if the Bill is passed it will be possible for prosecutors to apply for serious crime prevention orders where they are not confident that they have enough evidence of a type admissible before a jury to obtain a conviction; the protections of the criminal process will therefore be circumvented.

That is Justice’s view of how serious crime prevention orders will operate. Clearly, it is open to prosecutors to take the view that they want to go down the serious crime prevention orders route for those purposes. It is important to ensure that we are confident that the orders will not be used inappropriately.

I take on board what the Minister for Security, Counter Terrorism and Police said on Second Reading: that a prosecution would be pursued if it were possible. Our defining goal has to be that this process is a last resort rather than a first resort, as some commentators have suggested. A mechanism for having another 12-month period would perhaps allow for a further review after 12 months to see whether a criminal prosecution might be appropriate.

Vernon Coaker (Labour, Gedling)

This goes to the heart of the Bill and what we have been talking about. Of course we want people to be prosecuted, and if they are prosecuted—which is the first option—and convicted they will be subject to criminal penalty. However, the Bill is not about punishment, but about the prevention of future crime. The hon. Gentleman is in danger of rerunning the argument and saying, “These are punitive measures,” whereas our fundamental point is that they are preventive measures and are not a substitute for prosecution, but are about preventing future crime.

James Brokenshire (Conservative, Hornchurch)

I hear what the Minister said and I note the previous discussions and debates in Committee on this point. I do not intend to rerun previous debates. However, although I accept his intentions in relation to this being a preventive measure, the way in which the Bill is drafted could allow an alternative approach to be adopted. Hence the reasons for the concerns that have been expressed previously and my concerns about the need to impose a 12-month period to restrict the ambit of the control orders.

In conclusion, there is a clear justification for seeking a shorter period than five years for the operation of the control orders. A 12-month period would be appropriate and consistent with other pieces of legislation. It would allow a proper review of the terms of the orders, to ensure their proportionality and to address any uncertainty about their application, whether in the interests of law enforcement or the liberty of the subject. It would also ensure that the control orders remain appropriate in all the circumstances. That is a reasonable, fair suggestion. I hope that the Minister will consider it appropriately.

John Bercow (Conservative, Buckingham)

Order. The hon. Gentleman has ranged widely in his treatment of the amendments. I am not criticising him for that in any way, but it might be convenient for the Committee if I advise that, in the light of that, I am not minded to allow a clause stand part debate on this clause.

Jeremy Browne (Liberal Democrat, Taunton)

I shall be brief and to the point. This is the first time that I have chosen to speak this morning. I cannot remember whether the Minister said that certain hon. Members had moved on or passed away, but whatever their fate I am sure that they will not enjoy themselves nearly as much as they would have done if they had been here with us this morning.

I support the amendments. It is worth looking back to clause 6, which lists examples—it is not an exhaustive list—of the sanctions that can be put in place, including severe restrictions on people’s liberties, which, as I mentioned in previous sittings, mean everything short of imprisonment. I stand by that assertion. An individual’s financial property, business dealings or working arrangements—that is a very broad category of restriction—the use of any premises or item by an individual and their travel within the United Kingdom can be restricted. Those are severe penalties.

Vernon Coaker (Labour, Gedling)

So that the Committee is in no doubt, they are not penalties or punishments; they are preventive measures.

Jeremy Browne (Liberal Democrat, Taunton)

The Minister repeatedly makes that point. The essence of the Government’s argument is, “We prefer to prosecute people if we can, but if we know they are guilty and can’t find enough evidence to stand that assertion up, we have this list of measures instead.” The measures would not always be preventive; they may be imposed on people who have committed offences in the past, or are believed to have done, and who, it is believed, might be willing to do so in the future.

The amendment, which would replace “5 years” with “1 year”, would be more proportionate for someone who may never have been convicted of a criminal offence in their life, but who, it may be asserted, wishes to commit an offence in the future, but who may not choose to do so either.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

The hon. Gentleman would probably agree that when one thinks about the rollover provisions, which are the subject of the next debate, orders could run for 10 or 15 years.

Jeremy Browne (Liberal Democrat, Taunton)

I am grateful for that intervention and I will come to that territory shortly. The right hon. and learned Gentleman is right; he said 10 to 15 years, but the period could be indefinite; he was being generous. One could pick a figure—a multiple of five, for example—as it is all contained in the clause. One year is more proportionate, given that the person concerned has not been convicted of a criminal offence, and it provides scope for renewal and reflection on a more regular basis than if the period specified is five years, as in the clause as drafted.

Vernon Coaker (Labour, Gedling)

May I briefly return to the issue of prevention, which is at the heart of what hon. Members have been saying? I refer the Committee to the tests that must be met in order for a serious crime prevention order to be given, and especially to clause 1(1)(b), which states that the High Court may make an order if

“it has reasonable grounds to believe that the order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime in England and Wales”.

It is always the case that the measures that the serious crime prevention order would put in place would be preventive, preventing crime in the future. An SCPO cannot be given unless that second test is met. In the end, the High Court will be the judge of whether that is the case.

Crispin Blunt (Conservative, Reigate)

What is the reoffending rate for people who have committed serious crimes coming out of prison? There is a case for saying that the test would be met by anyone who had been in prison—that based simply on the statistics of people who have been in prison, it is reasonable to suspect that they would reoffend.

Vernon Coaker (Labour, Gedling)

I thank the hon. Gentleman for making that point, as it is exactly the point that I was about to make. Figures from the Serious Organised Crime Agency show recidivism rates of 85 per cent. It is not for the prisons or anybody else to determine whether it is appropriate for any of that 85 per cent. to receive a serious crime prevention order; it is a matter for the Crown court, when it is acting in civil way, or for the High Court.

As I shall say in my formal response to the debate, a recidivism rate of 85 per cent. makes the case very well for a serious crime prevention order to be available to prevent a person reoffending after they leave prison. It also makes the case very well that as there is a recidivism rate of such magnitude, SCPOs, as well as other measures, could be an effective tool available to the judiciary and to society to restrict the harm that those people might cause in the future.

The important point is that the vast majority of SCPOs would be imposed on an individual as a result of their criminal conviction.

Jeremy Wright (Rugby and Kenilworth) (Con) rose—

Vernon Coaker (Labour, Gedling)

Of course, only the prosecuting agencies could apply a serious crime prevention order. We would expect them to choose it in the first place. Before you rule me out of order, Mr. Bercow, I am coming back to the amendment. I was trying to answer one or two of the points. If the hon. Member for Rugby and Kenilworth will permit me, I must move on.

These amendments would make the maximum length of an SCPO one year instead of five. We chose five years because the vast majority of people engaged in serious crime will be engaged in a criminal lifestyle and will reoffend persistently. Initial work done by SOCA, in relation to its target base, is that the recidivism rate could be as high as 85 per cent. That is the point that the hon. Member for Reigate was making. As a result, we believe that the maximum possible length of five years is appropriate.

I stress that that is the maximum. The hon. Member for Hornchurch does not often do this, but he slightly glossed over that point. It does not have to be five years. It is a flexible measure that is available to the courts. If the court thought that a year was appropriate it would make it a year. If it thought that two years was appropriate, it would make it two years. But the provision offers flexibility up to a maximum of five years so that the court can make a judgment based on the evidence that it has before it for each individual case. That is a reasonable proposition. It is a reasonable power for the court to have.

I am sorry if I get boring on this, but the High Court cannot act in a way that is inconsistent with the European convention on human rights. It is a public authority for the purposes of the Human Rights Act and as such it must act in a way that is consistent with it. If it does not, people can go to the Court of Appeal.

The courts will impose orders that they consider to be reasonable and proportionate. So there is every possibility that orders will be put in place for a range of periods. In addition, for the courts to put in place an order for five years, they will have to have reasonable grounds to believe that it will prevent involvement in serious crime for those five years. If they think that the risk is more short term they would put in place an order for a shorter length of time. For those reasons I think we should resist the amendment and allow the courts to have the discretion available to them so that they can make the best judgment on the basis of the evidence that is before them.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I am not going to withdraw the amendment. I should like to make a number of points, if I may. The Minister has spent some time arguing that the provisions are not penal, but preventive. In one sense that is true. I have acknowledged that. I have made the point, as has my hon. Friend the Member for Hornchurch, that one looks to the consequences. The consequences are very severe and are certainly penal in character.

If one looks at the White Paper, one sees sometimes that the motive is effectively penal and not preventive. The fifth substantive paragraph on page 31, for example, contains a lot of discussion as to circumstances in which the order could be made as an alternative to prosecution. The following arguments are put forward: cases can be quite difficult to put together; overlong trials are not to be encouraged; somebody may be on the margin of the substantive conspiracy, and so on.

What exactly is being contemplated is that these orders will be used as an alternative to a criminal prosecution. Once one understands that, the argument that they are wholly preventive rather than penal disappears, at least to a high degree. The motive is to catch those who are guilty of criminal offences, but in respect of whom it is not desired, often for pragmatic reasons, to bring a prosecution. That is bad news. It is bad news for the variety of reasons that I have already articulated: namely, that none of the safeguards that are required in criminal cases applies.

It incidentally raises another interesting consequence. Let us assume that for the pragmatic reasons identified on page 31, it is decided not to prosecute a person who is on the margins of a criminal conspiracy. The consequence upon them of an order being made can be much graver in terms of the penalty than if that person were to be prosecuted, convicted and sentenced to a penalty by the original criminal court. That, again, is bad news because it undermines the presumptions of civil liberties for which I have argued in front of the courts for some 30 or 40 years. I regard that as thoroughly bad news.

The Minister has reminded us, as he has done many times, that the High Court is a public authority and is caught by the provisions of the human rights legislation. That is true, but is an irrelevant consideration unless and until a relevant article is brought into play. The Minister will remember that in our previous discussions, he and I have referred repeatedly to the case of McCann; that was a decision of the House of Lords relating to antisocial behaviour orders. However, he will remember that I was able to point out that article 6.2—one of the fundamental articles in the convention—did not apply. The House of Lords ruled in terms that as the ASBO provisions were not deemed to be criminal, the provisions in article 6.2 had no application. Consequently, the assertion made by the Minister that the protection afforded by the convention is absolute is true only to the extent that the courts will hold that an applicable article comes into play.

Chris Ruane (Labour, Vale of Clwyd)

If I understand the gist of what the right hon. and learned Gentleman is saying, that is assuming guilt before the event takes place. What was his attitude towards the travel restrictions placed on miners during the miners’ strike in the 1980s? Was he a supporter of that?

John Bercow (Conservative, Buckingham)

Order. The hon. Gentleman asked that but he should not have done so. I prohibit the right hon. and learned Gentleman from replying. I hope that he will now proceed.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Indeed, Mr. Bercow. That is the answer that I was going to give. That is absolutely irrelevant.

John Bercow (Conservative, Buckingham)

Order. I am very glad that the right hon. and learned Gentleman is telling me that, in any event, he was going to behave well. I was pointing out that the hon. Gentleman from the Labour Benches was behaving badly.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I was only showing my support for the Chair, Mr. Bercow. I did not know that that was a crime. Maybe it is a crime in respect of which I am going to have a serious crime prevention order. After this Government, anything is possible.

I was trying to deal with the point about the convention, which is an important one. People suppose—as this Committee appears to suppose—that the High Court is always bound by the terms of the convention. However, it is bound by the terms of the convention only when the articles are brought into play. They will come into play in varying and different circumstances. In particular the articles that apply to criminal cases will not apply in the context of serious crime prevention orders, because, for example, of the McCann judgment.

So, taking those two considerations into account, I agree with the argument that has been advanced that 12 months is long enough. I hope that the Committee will support that position, and I do not withdraw the amendments.

James Brokenshire rose—

John Bercow (Conservative, Buckingham)

I will call Mr. Brokenshire, but I say to the hon. Gentleman that if he has new and additional points to make in respect of the amendments, he is welcome to make them. It is fair to say that an hon. Member can speak for a second time on such an amendment, at the discretion of the Chair. I am happy to exercise that discretion, but we must be treating of new matters.

James Brokenshire (Conservative, Hornchurch)

Thank you for your discretion, Mr. Bercow, in allowing me to rise for a second time. The only reason for coming back was to respond to the Minister, who prayed in aid the recidivism rate as a justification for extending the period to five years. The latest National Audit Office figures show that breach rates for ASBOs are running at 55 per cent. and at 70 per cent. in certain parts of the country. I would be very cautious about praying in aid the recidivism rate as a way of justifying the need for serious crime prevention orders, particularly when breaches of other orders are running at such a rate. For the reasons that my right hon. and learned Friend has articulated well, we shall be supporting the amendment.

Jeremy Browne (Liberal Democrat, Taunton)

I beg to move amendment No. 9, in clause 17, page 10, line 24, leave out subsections (5) and (6).

John Bercow (Conservative, Buckingham)

With this it will be convenient to discuss the following: Amendment No. 111, in clause 17, page 10, line 24, leave out ‘does not’ and insert ‘shall’.

Amendment No. 112, in clause 17, page 10, line 25, at end insert

‘unless a period of not less than 12 months has elapsed since the date when the order, or any provision of an order, ceases to be in force.’.

New clause 3—Review of orders (No. 2)

‘(1) On the expiration of an order the court shall make a new order to the same or similar effect if—

(a) on the presentation by the applicant authority of new evidence not used as the basis for the original order; and

(b) after a review has been undertaken by the Director of Public Prosecutions of the possibility of criminal prosecution;

the court has reasonable grounds to believe that the making of the order would protect the public by preventing, restricting or disrupting involvement, by the person who is the subject of the order, in serious crime in England and Wales.’.

New clause 4—Restrictions relating to renewal of orders

‘A person who has been the subject of an order under section 1 may not be the subject of a second order in the absence of a criminal conviction.’.

Just before we get the debate on these amendments and new clauses under way, I take the opportunity to underline that the issues under consideration are the provisions for the renewal of orders. It is upon that specific subject that the debate should focus. We cannot and will not have a further debate on the general principles of such orders and on arguments for and against them.

Jeremy Browne (Liberal Democrat, Taunton)

The reason why I have tabled amendment No. 9 and new clauses 3 and 4 and regard them as important is that they get to the nub of what the Bill is about—the excessive use of arbitrary force by the state. If I may take hon. Members through the proposals that I am putting before the Committee, I hope that everybody will understand the point that I am making.

Amendment No. 9 would remove subsections (5) and (6). Subsection (5) sets out the power to make an additional order, over and above the five years that we have just voted to keep in the Bill, but contains a rather spurious use of the word “new”, in the phrase “making a new order”. That is a deceptive use of language, because we are actually talking about indefinitely extending an order that is already in place, rather than a new order in any meaningful sense.

A few moments ago the Minister said, “Ah, but you’ve got to remember that the five years is a maximum figure. It could be lower than five years.” That is true, but the figure could be indefinitely higher than five years. The right hon. and learned Member for Sleaford and North Hykeham said that the period could be 10 or 15 years. Indeed, it could be any multiple of five, yet no new evidence needs to be produced to apply for an extension at all. What is more, under subsection (6) an order can be made

“in anticipation of an earlier order...ceasing to be in force.”

In new clauses 3 and 4, we are arguing, first, that there should be a need for fresh evidence over and above what was originally available when the first five-year restriction was put in place. Secondly, there should be the ability to consider again the possibility of a criminal prosecution. A criminal conviction should be needed to give somebody a second order. With both the proposed provisions, we are trying to give the individual citizen who is subject to the orders some reasonable expectation of when their liberties will cease to be curtailed so restrictively under clause 6.

Under the Bill, somebody who has not necessarily committed a criminal offence can be restricted in all the ways outlined in clause 6, which the Committee voted through. They will have no ability to know how long those restrictions will be in place. The figure of five years is slightly misleading, because if the restrictions can be renewed and extended in multiples of five without any new evidence being produced, five years is just a starting point. If the Bill goes through unamended, some people will be restricted for the rest of their lives in all the ways laid out in clause 6 and in other ways unspecified in the Bill. As a Committee, we should not allow that to pass into law and to disturb fundamentally the balance between the state and the individual citizen.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I support the amendment. I should also like briefly to speak to amendments Nos. 111 and 112, which are in my name and which are designed to have effects similar to those of amendment No. 9.

My purpose is to stop the rolling over of orders in the way that the hon. Gentleman has described. In the Bill, provision is made for the rolling over of orders without limit of time. There is no limit at all on the number of orders that can be made seriatim, as lawyers used to call it before the Latin tags were prohibited. That means consecutively. You knew that, Mr. Bercow, but not everybody on the Committee did.

Members of the Committee will have spotted that the application to make the fresh order can be made before the existing order has come to an end, so they are genuinely rolling-over provisions. I do not want to rehearse all the arguments that have already been made—you have told us not to do so, Mr. Bercow, and I understand why—but it is important to keep in mind the draconian nature of the orders that can be made. As has been said repeatedly by hon. Members, the provisions set out in clause 6 will impact on almost any aspect of a person’s life: where they live, with whom they communicate and how they earn their living. They are draconian.

Secondly and differently, as I said in the previous debate, page 31 of the Green Paper makes it quite plain that the Government are contemplating using serious crime prevention orders as an alternative to prosecution. Although it is right, in a sense, to say that the orders are preventive, a policy of using them as an alternative to prosecution, which is the stated policy, comes very close to penal orders without the protection of the convention on human rights, which is often invoked by the Minister. Many of the important provisions of the convention apply only to criminal procedure. For example, some of the provisions of article 6 have no application, as stated by the Lords in the case of McCann, so we are dealing with a serious reduction in the liberty of subjects. Given that background, one has to ask—

Mr. Coaker rose—

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I shall just finish my point. I pose this rhetorical question, to which the Minister can reply. How long should such a penal system remain in force?

Vernon Coaker (Labour, Gedling)

As long as the court deems it appropriate. The right hon. and learned Gentleman referred continually to the McCann case, in which it was found that ASBOs were a civil measure. He drew attention to article 6.2 of the European convention on human rights, which does not apply because we are talking about a civil measure; however, article 6.1, on the right to a fair trial, will apply.

John Bercow (Conservative, Buckingham)

Order. I recognise that the Minister wants to respond to points that have been made to facilitate the flow of the debate and, as he would perceive it, to enhance understanding of the Bill. However, I have said relatively gently that we cannot—and will not—rehash or reheat debates and arguments. I now appeal to and exhort the right hon. and learned Gentleman during the remainder of his remarks not to dwell on matters, however important he thinks that they are, that the Committee has already addressed. I was hoping shortly to hear the word “renewal” from him, as the substance of his argument should focus on that point.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Forgive me, Mr. Bercow. The last thing that I want is to transverse on your patience, but whether an order should be renewed—“renewal” is now firmly on the table—is to be determined by the nature of the orders. If the orders were fairly minor in character, were surrounded by all the safeguards that I have urged on the Committee and were of short duration and applied to people who had committed criminal offences, renewal would not be so oppressive.

If all of the considerations that I have identified do not exist, renewal will become oppressive especially when we are dealing without a time limit or occasion to that renewal. We are laying the foundations for a very oppressive regime, and key to that is the power of the enforcement agencies to ask the court for renewal. I have a fundamental objection to the measure; it is not a slight objection. I hope therefore that the Committee will reject the concept of the rolling renewal that is contemplated by the Bill. The lead amendment is tabled in the name of the hon. Member for Taunton, so it is up to him to determine whether to withdraw it.

Jeremy Browne (Liberal Democrat, Taunton)

It is not my intention to withdraw the amendment. I wish to press it further.

James Brokenshire (Conservative, Hornchurch)

The issues arising from the amendment have been highlighted effectively during the debate. There is clearly much unease and uncertainty about the import of the provisions in relation to the duration of the orders, how they would apply and what safeguards and protections are in place to ensure that they are appropriate and effective in terms of protecting the public, but we must not impose undue conditions or restraints. Clearly, the duration of an order is entirely relevant and appropriate when examining the breadth and scope of the ambit of the protections offered. I shall therefore listen carefully to what the Minister says in response to the points that have been made. They have been made effectively and he has much to come back on to justify the current position.

Kali Mountford (Labour, Colne Valley)

I oppose the amendment. As a Government Back Bencher, I realise that it might be dangerous to do so before the Minister has given his explanation of why we should resist it. However, I do so on behalf of my constituents and I shall briefly explain why.

The purpose of the orders is the prevention of crime, and I see a distinction between the two sides of the House on the aim of the orders. The courts ought to anticipate the orders. We must bear in mind the seriousness of the crime that we are dealing with. I am thinking about some of the cases to which my constituents have been subjected, some of whom have been victims of serious crimes, particularly those involving children or violence against women. Some of these crimes do not just occur overnight, but are planned over a long period of time. It seems right to me that the court should anticipate whether a lot of planning was involved in the crime.

It would be wrong if we, as a House of Commons, were not thinking on behalf of the victim. If a court thinks that a crime is being planned, it should be able to keep in place the restrictions on the people it believes to be involved. I ask the Committee to think from the other perspective—that of people who have been victims of crime and who we anticipate might be victims of crime in the future. If we know that serious crimes are being planned and there is evidence that can be used in court showing that people who have been involved in such crimes in the past might be involved, I agree that we should prosecute. Is it not right simply to say that courts should intervene if we can restrict people’s behaviour to stop them being involved in crime in the first place?

Chris Ruane (Labour, Vale of Clwyd)

My hon. Friend has pointed out the dividing line between us and the Opposition. What does she think would be the assessment of that great Tory arbiter, the man on the Clapham omnibus? What side would he take?

Kali Mountford (Labour, Colne Valley)

I do not make a distinction between people from Clapham, Colne Valley, and any other place beginning with C or anywhere else. I have told the Committee on previous occasions that the country is asking us to be on the side of the victim. I think that we are in danger of being on the wrong side of the argument.

Jeremy Browne (Liberal Democrat, Taunton)

I wonder whether the hon. Gentleman is right in assuming that the average person on the Clapham omnibus, or any other bus, does not hold our liberties in great regard and thinks that somebody who has committed no criminal offence should be subject to sanctions that could potentially exist for the rest of their life.

Kali Mountford (Labour, Colne Valley)

The hon. Gentleman has made the argument about the balance between the civil liberties of the accused and the victim many times, and I have responded to it.

I am merely pointing out that by this point, the court will already have been through a process of considering whether the person presented to it is a risk to the public. It will have to have gone through that process. We have discussed the process again and it is reasonable for the court, with everything that it has had in front of it, to be able to anticipate at the end of the order whether it needs to be put in place again. Whether it is after one, two or five years—the court can impose an order of any length, not just five years—if a court realises that an order must be re-imposed, it would be wrong-headed were it simply not able to do it. That would not give the protection to the public that I want to see.

Vernon Coaker (Labour, Gedling)

I thank my hon. Friend for that powerful contribution, which goes to the heart of the debate. My hon. Friend and all hon. Members would defend civil liberties. We understand that, but—this is part of the reason for the Bill—in certain circumstances it is necessary for the victim’s civil liberties to be given a little more precedence than those of somebody who is causing harm to a community and may cause it harm in the future. That is my hon. Friend’s point. It will be very difficult for us to explain to our constituents if we pass a measure in Parliament that prevents the court from doing something which could prevent harm to them in the future. My hon. Friend’s powerful speech reminds the Committee and all hon. Members that there is a difficult balance to strike between the rights of the individual subject and public protection. We are trying to strike that balance and we ought to remember the civil liberties and rights of the victim as much as we sometimes remember those of the perpetrators of crime. It makes sense to include something in the clause to anticipate an earlier order or provision ceasing to be in force.

I can understand, to an extent, why the hon. Member for Taunton tabled the amendments, but I hope—although, given the debate, I am not that hopeful—that he will accept that they are unnecessary. He seeks to provide a protection to subjects of orders so that the orders are not renewed unreasonably on expiry.

Dan Rogerson (Liberal Democrat, North Cornwall)

In a previous discussion, the Minister mentioned a statistical likelihood of reoffending as a reason for such a provision. In the context of renewal and talking about victims, we could be led into talking about a victim when we have not got one at this point. We are talking about potential crimes that may be committed in future. Does the Minister feel that we have a role in respect of victims even though we are talking about potential crimes that may be committed in future?

Vernon Coaker (Labour, Gedling)

The whole point of serious crime prevention orders is to prevent there being victims in future. A court will not give a serious crime prevention order, or put one on an individual, if it did not believe that it would prevent serious crime in future—in other words, the orders are to protect the public. That was the point that my hon. Friend the Member for Colne Valley made and that is what I say to the hon. Member for North Cornwall. I am sure that if he spoke to his constituents in North Cornwall, many would say that they want the public protected and victims’ rights given a little bit more precedence and priority than is sometimes the case.

The Bill already provides protection to the subjects of the orders so that those are not renewed unreasonably on expiry. I remind the Committee that for an order to be renewed on expiry, as provided in the clause, the test in clause 1 would have to be met in exactly the same way as if it were a brand new application. The applicant authority would have to provide then High Court with

“reasonable grounds to believe that the order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime”.

As we have already discussed in relation to clause 1, that provides an effective test for applicant authorities to have to meet when applying for an order. The test is explicitly laid out in clause 1, the implications of which we have debated a number of times. Any renewal or new order that is put in place has to meet that test, whether on the expiry of the existing order or before a new order is made.

Crispin Blunt (Conservative, Reigate)

I should like to mention something, just so I am completely clear about what “renewal” means in the context of clause 1. People who have been convicted of a serious crime, under any test that the Minister is presenting under clause 1, can expect to be subject to orders forever because of the recidivism rate, which is the evidence that he has given for them to be subject to an order. People convicted of serious crimes will leave prison with all the other paraphernalia, including parole and everything else, with the Prison Service and their time in prison having failed to address their recidivism rate. The failure of our public policy in this area will be addressed by these orders and people can expect, on the balance of the reasonableness test in clause 1, to be subject to them for the rest of their lives.

Vernon Coaker (Labour, Gedling)

There are a couple of points there. Without going back to the standard of proof debate, the hon. Gentleman will know that the matter is not dealt with on the balance of probability. First, under clause 1, as we said, the standard of proof would be virtually identical to the criminal standard, so it is not about the balance of probability in respect of clause 1(1)(a). Secondly, of course one wants to see the recidivism rate—the reoffending rate—reduced. Of course, the hon. Gentleman raises a number of important issues about what happens in prison, including how we prevent reoffending and the sort of treatment that is given in prison for drug addiction. Of course, the hon. Gentleman raises a number of important issues about what happens in prison, including how we prevent reoffending and the sort of treatment that is given in prison for drug addiction. All of those are crucial and they need to be worked on and developed. My hon. Friend the Member for Liverpool, Garston will consider them in her new role in the Ministry of Justice.

However, the need to develop policies in other areas is not a reason for making available to the courts measures that might prevent crime in future. All that we are doing here is adding to the options that the court might choose to use in order to prevent harm to the community. The hon. Member for Reigate makes a powerful point about the other issues that need to be addressed. However, that is no reason for not doing this; it is a reason for considering what more we need to do on other policies while continuing to develop this one.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I am very grateful to the Minister for giving way. Perhaps he would reflect that he has done less than justice to the point made by my hon. Friend the Member for Reigate. While clause 1(1)(a) imports something approaching the criminal standard, clause 1(1)(b) does not, in that it says

“it has reasonable grounds to believe”.

In the case of a conviction, the court has to be satisfied merely that there are reasonable grounds to believe and—as my hon. Friend said—on the basis of a conviction, orders can, effectively, be made indefinitely.

Vernon Coaker (Labour, Gedling)

As I say, if somebody has been convicted of a serious crime and, in the judgment of the court, continues to pose a risk to the public, of course a serious crime prevention order should be available to the courts. I apologise to the hon. Member for Reigate—I was not making light of his comments; I was agreeing with him that more needs to be done in other areas, and that is what we are trying to do. My point was that that is not an argument against serious crime prevention orders, which should be available to the courts should they choose to use them; it is an argument for developing other policy alongside them.

Kali Mountford (Labour, Colne Valley)

Is there not another choice? Are not offenders also free to desist from their behaviour? They can simply give up crime.

Vernon Coaker (Labour, Gedling)

My hon. Friend makes the very point that I was going to make next. It is an extremely good one, and I thank her for her well-put intervention.

Crispin Blunt (Conservative, Reigate)

On precisely the point raised by the hon. Lady, of course that choice is available—it is the one that everybody wants people to make—but under these provisions, somebody can be made subject to an order having finished a term of parole or as soon as he is released from prison. The fact that he has been convicted is the reason for his being made subject to an order. He has not said that he will be a good boy—at current rates, thanks to the failure of policy, 85 per cent. of people who leave prison are not good boys; they reoffend. A conviction is a reasonable ground under clause 1(1)(b) for the application of one of these orders. My concern is that this measure is being used as the easy way out because of the failure of our penal policy to address recidivism in prison—we will just pass orders for ever on people, once they have been convicted of serious crime. Our having to go down this route is an admission of a terrible failure in our criminal justice system.

Vernon Coaker (Labour, Gedling)

I do not accept that at all. The hon. Gentleman pointed out the first part of the test, which is a criminal conviction for involvement in serious crime. I do not want to read out again clause 1(1)(b), but the judgment of the Court has to be taken into account. Involvement in serious crime is one part of the test. The second part of the test is that the Court believes that such action would protect the public by preventing crime. Is the hon. Gentleman really saying that a serious crime prevention order should not be put in place if the Court believes that somebody will commit crime in future?

My hon. Friends and I think that if a court judges that applying a serious crime prevention order to an individual who has been involved in serious crime will prevent crime and harm, the vast majority of people in this country will say, “You impose that order.” As my hon. Friend the Member for Colne Valley said, the individual can choose to obey the law, as the vast majority of people in this country do, and not be made subject to a serious crime prevention order.

John Bercow (Conservative, Buckingham)

Order. The hon. Gentleman must not allow himself again to be inveigled into straying from order.

Jeremy Browne (Liberal Democrat, Taunton)

Further to the point raised by the hon. Member for Colne Valley, if a person leaves prison determined to be one of the 15 per cent. who do not reoffend, how can they prove to the Minister’s satisfaction that their future intentions are honourable?

Vernon Coaker (Labour, Gedling)

With due respect, it is a question of proving that not to my satisfaction but to the court’s satisfaction. [Interruption.] I will finish the point. It is the court’s decision that is crucial.

Mr. Browne rose—

Vernon Coaker (Labour, Gedling)

I will move on.

Chris Ruane (Labour, Vale of Clwyd)

May we remind the Committee that we are not talking about petty criminals? Some 85 per cent. of them are recidivists, and such people are not going to pinch a Mars bar, for example. They are serious, organised criminals, and if they get back on the streets and continue their dirty work, society will be the poorer.

John Bercow (Conservative, Buckingham)

Order. I appreciate the purpose of the intervention, but I repeat again for the avoidance of doubt that the issue with which we are dealing is the question of the renewal of orders. The right hon. and learned Member for Sleaford and North Hykeham explained that he thought that it was relevant to refer slightly more widely because he was talking about renewal. The Committee must not dilate upon the general principle, which it has very thoroughly considered.

Mr. Browne rose—

Vernon Coaker (Labour, Gedling)

Go on.

Jeremy Browne (Liberal Democrat, Taunton)

The Minister probably misunderstood my intervention because I worded it badly by referring to him personally. The point that I was trying to make is, how is someone with honourable future intentions meant to demonstrate that good intent? At the moment, the assumption would be made, on the basis of likelihood, that that person would offend. If that person is not going to do so, it is impossible for them to prove that they are going to be good in the future.

John Bercow (Conservative, Buckingham)

Order. Again, the intervention may have been well intended, but it was not relevant to the question of renewal.

Vernon Coaker (Labour, Gedling)

So that I am not inveigled again, I shall finish my remarks on that issue. [Interruption.] No, I will move on.

When considering the renewal of orders, a High Court judgment on whether a person is potentially a threat to the public because of their involvement in serious crime is a far more relevant factor than what the order was based upon or whether a specific period of time has elapsed.

To constrain the Court’s judgment in the ways that have been proposed could lead to the perverse situation in which a court might feel that it was reasonable and proportionate to grant an order to protect the public, but is unable to do so.

Crispin Blunt (Conservative, Reigate)

The issue of renewal relates to the automaticity that I fear we will set up in the system if the measure goes through as drafted in the Bill. Once the reasonable test is passed, people who are convicted of the offences in the schedule will automatically be subject to these orders when they come out of prison. Those orders will be automatically renewed unless a person can get themselves off the hook. The issue is that if the recidivism remains, it is quite difficult to see, as the hon. Member for Taunton says, how that would be established. It is the automaticity that is coming into the system with these renewal orders that should concern the Committee.

Vernon Coaker (Labour, Gedling)

The hon. Gentleman makes his point reasonably. I do not believe that there is an automatic renewal in the Bill. There is the possibility of renewal, providing that the tests set out in the Bill are met. If the tests are not met, it is open to the court to renew an order. I would find it hard to explain to one of my constituents why a reasonable and proportionate order compatible with convention rights was not put in place, when it could have prevented harm to them and it could have prevented a serious crime.

I take the hon. Gentleman’s point about a renewal being automatic, but I do not think that the Bill provides for an automatic renewal, for the reasons that I have stated.

James Brokenshire (Conservative, Hornchurch)

It is my understanding that a further renewal of an order would be treated as a new order for the purposes of the Bill and considered ab initio. In the regulatory impact assessment, it was stated:

“In total we expect about 30 SCPOs to be applied for annually.”

Does the Minister still stick by that estimate in the context of the renewal of orders? From what we have heard during this debate, we can certainly expect a lot more than 30 orders annually.

Vernon Coaker (Labour, Gedling)

That is the number that we put in our regulatory impact assessment, and it is the number that we expect. The number that will be renewed will be a matter for the courts.

As I said, we have clearly laid out our proposal and we have discussed it fully. There is clearly a difference of view within the Committee. However, the power to renew these orders is an important one, and I think that most of our constituents would feel the same.

Clause 18

John Bercow (Conservative, Buckingham)

With this, it will be convenient to discuss new clause 2—Review of orders —

‘(1) The relevant applicant authority shall inform the High Court in England and Wales of any change in circumstance which may entitle the person who is subject to the order to apply for a variation or discharge.

(2) The relevant applicant authority shall inform the High Court in Northern Ireland of any change in circumstance which may entitle the person who is subject to the order to apply for a variation or discharge.’.—[Mr. Jeremy Browne.]

Jeremy Wright (Conservative, Rugby and Kenilworth)

I have a specific concern regarding clause 18, which I hope that the Minister can reassure me about, that relates to the provisions dealing with applications to vary an order that may be made by the relevant applicant authority. I assume that the situation envisaged is that the authority that originally sought an order and had it granted wishes to go back to the court for a variation on that order. The conditions under which the authority is able to do that, as set out in clause 18, are different from the conditions faced by the person subject to an order who then wishes to go back to court to have it varied. That causes me a little concern.

Clause 18(4), which deals with the conditions attached to the person subject to the order, states:

“The court must not entertain an application by the person who is the subject of the order unless it considers that there has been a change of circumstances affecting the order.”

By comparison, however, clause 18(8) states:

“A variation on an application under subsection (3)(a)”—

in other words, an application for variation by the relevant applicant authority—

“may include an extension of the period during which the order, or any provision of it, is in force (subject to the original limits imposed)”;

in other words, the five-year time limit. But in the case of an applicant authority making an application for variation, there is no requirement regarding a change of circumstances. I am concerned about that, simply because I do not think that the Government would wish to create a position in which the relevant applicant authority can have another bite of the cherry, in order to obtain a more stringent set of restrictions on the liberty of the person subject to the order than it was able to get in the first place.

The courts should not be tied up with repeated applications by the relevant authority, just to get a few more restrictions than were obtained in the first place. The Minister said earlier in relation to a different clause that it would be for the court to decide what sort of restrictions are appropriate and for how long. That was in connection with the argument that we had about the proper duration of the orders. It would not be right in that context for the relevant applicant authority to keep coming back to court to make that application. Can the Minister explain why the requirement that there should be a change of circumstances affecting the order should not apply equally to applications for variation made by the relevant authority, as well as to those made by the individual subject to the order?

Jeremy Browne (Liberal Democrat, Taunton)

I just want to make a brief contribution because new clause 2 is tabled in my name, and because it is a complicated clause compared with others.

At present there is no obligation on the state to keep the circumstances of the order under review. That obligation to apply for a discharge or a variation order rests with the defendant. My enthusiasm is to try to make the state more accountable for its actions by placing that burden of keeping the order under assessment, and to ensure that if there is a consideration of discharge or a variation to the order, it is obliged to undertake that.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I should like to make a number of specific points. First, would the hon. Member for Taunton forgive me if I disagreed with new clause 2? I do not think that it would always be the case that the enforcement agency would know about a change in circumstances. In general terms, the change of circumstances would be known, if not exclusively, then largely to the person who is the subject of the order. My feeling is that it would be unfair to place that obligation on the enforcement agency unless it had particular notice of a change of circumstances. To that extent, I do not agree with the hon. Gentleman, although I understand and agree with the overall motives of what he is describing.

I should like to make three specific points. First, I have some difficulty in understanding the real purpose of clause 18: whether it is designed primarily to make current orders more onerous, or less onerous. When one looks at clause 18(1), the criteria to which the courts have regard, it is not plain from those what the over-arching purpose is.

My second point builds on the point made by my hon. Friend the Member for Rugby and Kenilworth. He is entirely right that there is an imbalance here between the enforcement agency and the person who is the subject of the order. The agency does not have to establish any change of circumstance and, as my hon. Friend says, it can make the order more onerous even if there has been no change of circumstance. That is the effect of clause 18(8). However, the person who is the subject of the order has to demonstrate a change of circumstance. I do not like that imbalance because I see no reason in principle why there should be an imbalance. The consequence, as my hon. Friend rightly said, is that the enforcement agencies can simply go back and seek to improve on the condition of the order from its perspective, even if the omission was through their own fault in the first place. I do not like that one little bit.

Finally, if the change of circumstance justifies an application by the person who is the subject of the order, what are the criteria to which the court should address itself when determining whether or not to make the variation order? I am making absolutely no complaint as to the fact that amendment No. 114 was not selected; decisions have to be made. At least in that amendment, I tried to set out the criteria, which at the moment do not exist at all in the Bill.

I have two questions to put to the Minister. First, what is the primary purpose of clause 18? Secondly, what are the criteria to which a court should have regard when it considers an application to vary made by the subject of an order on the grounds of changing circumstances? The Committee requires answers to those questions.

John Bercow (Conservative, Buckingham)

Order. It is probably just as well for the record to point out that amendment No. 114 was selected and it was, indeed, debated with amendment No. 104 to clause 10.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I am sorry.

Vernon Coaker (Labour, Gedling)

I am glad that you mentioned amendment No. 104, Mr. Bercow, because I was wondering what happened to it.

The purpose of clause 18 is to ensure that an order can be varied so that it can be kept proportionate and reasonable by the applicant authority. I shall come back to the points made by the hon. Member for Rugby and Kenilworth and his right hon. and learned Friend, but the clause gives the option to vary an order to either the subject or the applicant authority. When either is significantly adversely affected, they may go back to the High Court and say, subject to conditions being met, that the order should be varied. The purpose is to bring proportionality and reasonableness to the Bill.

On the point made by the hon. Member for Rugby and Kenilworth, the applicant authority is given the freedom to go back to the Court without having to specify a change of circumstance to ensure that an order is not left in place if it becomes disproportionate or inappropriate. The subjects of orders are restricted from making similar applications to prevent them from overloading the courts with repeated and baseless representations about changes of circumstance. We have differentiated the authority that has applied for and been granted an order to ensure that such authorities have the power to change orders should it come to their attention that that is appropriate. The different stipulations for respondents are made because we do not want them continually to make erroneous or spurious applications or to overload the Court.

Jeremy Wright (Conservative, Rugby and Kenilworth)

The Minister said that the variation provisions were available to ensure that authorities could return to the court if a particular facet of an order became disproportionate or inappropriate. If that is the case, an order would become disproportionate or inappropriate as a result of a change of circumstances. I am not clear as to why a change of circumstances should not be a requirement for an authority that goes back to the Court to ask for a variation of an order.

Vernon Coaker (Labour, Gedling)

As I said, the applicant authority must be given an unfettered right to apply for the variation of an order to ensure that the order remains proportionate and appropriate. The distinction is—I am repeating myself—that a respondent may not go back to the High Court without specifying a change in circumstances. Without that requirement, people might continually go back to the Court with what we might term erroneous, insignificant or unimportant changes of circumstance.

Jeremy Wright (Conservative, Rugby and Kenilworth)

I shall put it to the Minister another way because what he is saying presents a difficulty. We shall not argue again about whether the orders are penalties, but there can be no disagreement that they can have severe implications. Given the severity of the orders, is it not important that the person affected has certainty? They will never have that certainty if the relevant authority is permitted to go back to ask for a variation without there having been a change of circumstance, including a variation that would make the requirements of an order yet more onerous.

Vernon Coaker (Labour, Gedling)

Again, the Government have made the right distinction in the Bill, but the hon. Gentleman is arguing against it, albeit reasonably. At the end of the day, whether or not the court had to take account of a change of circumstances, if the applicant authority was making it more onerous, it would still have to demonstrate to the court what it intended to do and make its request to the court in a way that was reasonable and proportionate and to the satisfaction of the court. That is the safeguard. It is not necessary for the applicant authority to have the restriction that we have placed with respect to the respondent; in the end, the arbiter will still be the court. It will be the court that makes the judgment.

It is a different situation with respect to the respondent, because there is a different purpose. We are trying to ensure that we do not get a huge number of baseless applications, while retaining the right of a respondent to try to get an order varied if there is a significant change of circumstance which they believe the court should take into account.

Clause 18 provides an important power for the court to make variations to an order when appropriate. As I have said several times, the orders will not be used for anything other than to prevent involvement in serious crime, so when there has been a change in circumstances from when the order was made, which means that the terms of the order are no longer appropriate, an application can be made to the High Court under clause 18 to vary it.

I must resist the new clause as it is unnecessary and undesirable and would place an obligation on the relevant applicant authority that it could not possibly fulfil. To answer the point made by the right hon. and learned Member for Sleaford and North Hykeham, how is the applicant authority to know and hence inform the High Court, of every change in circumstance that occurs, which would potentially give the subject of the order the right to apply for variation or discharge?

The orders will most often be part of law enforcement efforts to manage serious career criminals for their lifetime. However, it does not mean that they will be under observation for 24 hours a day. It remains the case that the person most likely to know of a relevant change of circumstances, which would occasion the right to apply for a variation or discharge, is the subject of the order himself.

We need to think about the practicalities, and what the change in circumstances could possibly be. For example, what about the condition to use only one mobile phone to prevent the use of clean and dirty phones? The subject may take legitimate employment, which requires the use of a work mobile and makes the order unreasonable without variation. How would the applicant authority know of that? We have provided extensive rights for the subject of an order and third parties to apply for variation and discharge of the order, which reflects the practical realities of how the orders will work and achieves the aim of the hon. Member for Taunton in tabling the new clause: that there is a means of ensuring that the terms of an order are maintained in a reasonable way.

In answer to the right hon. and learned Gentleman, the purpose of the clause is to try to ensure that when in place the orders are kept proportionate and reasonable, hence the desire to allow people to apply to vary them should there be a change of circumstances. Clause 18 provides an effective protection, which will mean that the terms of the order are appropriate.

For those reasons, I hope that the hon. Member for Taunton will seek to withdraw the new clause.

Jeremy Browne (Liberal Democrat, Taunton)

I want to respond to a couple of points about the new clause, and I understand the concerns that were expressed. My proposal does not exclude the defendant from applying for a variation, but it also puts a burden on the authority in that regard.

The orders have very severe penalties, which may restrict a person going to their own home, their working arrangements and their travel within the United Kingdom or abroad, and the authorities should know if the circumstances of a person who has had such restrictions imposed on their liberty change substantially. As the hon. Member for Vale of Clwyd said, we are not talking about people who have stolen a Mars bar, but about really serious criminals.

The Minister estimates that about 30 people would be subject to these control orders in any given year. They are serious criminals, as the hon. Member for Vale of Clwyd pointed out. Very small numbers of very serious criminals will have all their liberties restricted, short of being sent to prison. In those circumstances it is not unreasonable for the authorities to have an idea about whether their circumstances have changed. Furthermore, if it means that the police are more guarded about using these powers in all but the most extreme circumstances, that is no bad thing either. For those reasons, I am keen to push the new clause to a vote.

John Bercow (Conservative, Buckingham)

The hon. Member for Taunton indicated that he would like to divide the Committee on the subject of new clause 2. That division will be taken when we reach the relevant point in our consideration of the Bill.

Clause 19

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I shall make a number of specific points. Once again, we see an imbalance between the powers of the relevant applicant authority and the powers of the person who is the subject of the order. In the case of the relevant authority, there is no need for there to be any change of circumstance, whereas in the case of the subject of the order there is. I rather doubt whether the applicant authority will be making any applications to discharge the orders save as the result of some bargain made between the person who is the subject of the order and the applicant authority.

I can contemplate a deal being done between someone deemed to be a criminal who is already the subject of an order, and the applicant authority. The deal would be something like this: “If you give us information, we will go to the court and apply to discharge the order.” Whether that is a good thing or a bad thing depends on the transparency of the deal. I rather suspect that neither the court nor the rest of us would learn about the nature of the deal. While in some circumstances I might applaud the deal, I am by no means willing to say that I would do so in all circumstances.

Let me repeat what I said before in this Committee. Once public authorities are given power it is always abused. It is a fundamental law of public law. All power, once given to officials, is always at some stage or other abused. This Committee, as representative of the House as a whole, has to be very conscious of that.

I am aware, as I reminded myself of the grouping under clause 10, that we have already debated my amendment No. 115, which was intended to set out criteria as to the considerations which the subject of the order would have to establish in order to prove that the discharge order should be made. The problem about the clause as it is currently formulated is that there is no indication of what the applicant has to prove, other than a change in circumstances. Once a change in circumstances has been established, it is left at large as to the criteria that the courts should adopt. I personally find that rather undesirable. I should have thought it highly desirable that the Bill should say what considerations the court should adopt.

There is a slightly different point. What is the meaning of the phrase,

“a change of circumstances affecting the order”?

What is the position where the applicant says, “I have turned over a new leaf”? That is the point made by the hon. Member for Taunton. Is a person who says, “I have turned over a new leaf” a person who can say that there has been a change of circumstances affecting the order? I do not know the answer to that. But it is rather important. If the applicant can say that he comes within that rubric, this is a form of appeal against the order once made. If not, if we are dealing with a technical matter only—for instance, “I no longer wish to use this particular mobile telephone, but I would like to use another one,” or, “I do not want to use this bank account; may I use another?”—it is a very limited right to apply for a discharge of the order. I would welcome guidance from the Minister on the meaning to be given to the phrase

“change of circumstances affecting the order”.

In short, is it an opportunity for people who have turned over a new leaf and who want to lead a new life to ask for the order to be lifted? As I said, I would like to see the criteria to be adopted by the court set out in the Bill.

Vernon Coaker (Labour, Gedling)

I was not going to speak on clause 19 because many of the arguments have already been rehearsed. However, the point raised by the right hon. and learned Member for Sleaford and North Hykeham about someone saying that they have turned over a new leaf is important. Someone saying that they had turned over a new leaf would not of itself be sufficient for the court, as the right hon. and learned Gentleman will concede. If the person who was the subject of the order could demonstrate his new circumstances to the court and show how he had changed, the court might be able to consider it, but a person saying simply that he had turned over a new leaf would not be enough. The court would have to hear the evidence that the respondent wanted to present in order to determine whether he had turned over a new leaf.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

The Minister makes a rather important statement. He will know that the courts are entitled to consider ministerial statements when determining the interpretation of statutes. I understand plainly what he says—that the applicant has to produce evidence to show that he has turned over a new leaf. That is wholly and utterly right. I accept that. However, he also says that if the applicant can do that and the court is satisfied, as a matter of fact, that he has turned over a new leaf, the change of circumstances provision is established and the court can discharge the order.

Vernon Coaker (Labour, Gedling)

Only if it is relevant to the conditions imposed under the serious crime prevention order. The subject of such an order can say, “I have turned over a new leaf. I can demonstrate to the court how I have changed in the following ways—A, B, C, D.” The court may be satisfied that the conditions that led to the imposition of the order are no longer relevant because of that change. That is something that the court can consider—I see that the right hon. and learned Gentleman is nodding. I realise that he is not saying this, but a statement saying that someone had turned over a new leaf would not be sufficient. I therefore hope that the clause will stand part.

Clause 20

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I beg to move amendment No. 121, in clause 20, page 12, line 44, leave out from ‘concerned;’ to the end of line 1 on page 13.

The amendment is small, but I suggest that it is surprisingly important. It would delete the provision contained in subsection (7)(b), namely that an order can be made by the Crown court in addition to an order “discharging the person conditionally”. I do not want to go into too much detail, but my wish to delete that paragraph goes back to an earlier debate and the question of what offences should be caught or classified as serious offences.

The Committee may remember that I had suggested that the penalty was a good way of identifying those offences that should be treated as serious crimes under the Bill. One thing is absolutely plain: in the generality of cases, a person who has been conditionally discharged is being treated extraordinarily leniently. It inevitably follows that an offence that attracts a conditional discharge can in no sense, in ordinary language, be considered serious. It is almost the least penal of punishments that can be imposed. An absolute discharge is probably the least penal, but a conditional discharge is the second least penal or oppressive.

By including that provision, we are enabling the Crown court to impose a pretty draconian order—we come to the arguments about clause 6—in respect of somebody where the offence, as determined by the nature of the penalty, is by definition pretty trivial. I do not like the feel of that one little bit, especially when one considers the renewal provisions that we have debated already. On any view, I would say that subsection (7)(b) should be cut out of the Bill.

James Brokenshire (Conservative, Hornchurch)

I support the amendment. In this context, we have to look back at what has been said about the reason for seeking serious crime prevention orders. I referred earlier to the fact that we have been told that, in essence, it is anticipated that only 30 applications for serious crime prevention orders would be made a year. We have been told that the intent would be to use them for the “Mr. Bigs”—in other words, a small, narrowly defined group of serious offenders. In considering the Bill and how it is framed, it is appropriate to consider not only the types of offences that are specified in schedule 1 as denoting seriousness for the purposes of the Bill, but the range of punishment that might be available.

My right hon. and learned Friend has focused on the point about conditional discharges. It would seem strange that one of those 30 orders against a Mr. Big would apply to someone who had received a conditional discharge, because that would suggest that the court did not regard the offence as serious in that context. My right hon. and learned Friend has made a persuasive case and therefore certainly has my support from the Front Bench in pursuing the amendment.

Jeremy Wright (Conservative, Rugby and Kenilworth)

Briefly, I, too, would like to support the amendment that my right hon. and learned Friend the Member for Sleaford and North Hykeham has moved, for the reasons given by him and, from the Front Bench, by my hon. Friend the Member for Hornchurch.

A substantial imbalance would be created if subsection (7)(b) were to remain in the Bill, because somebody receiving a conditional discharge can receive such an order in consequence of a criminal conviction only if either their involvement in the offence was minimal or their personal circumstances were so remarkable that that was thought to be the appropriate decision in the case. In either situation, for that to be the criminal penalty and for a civil order placing extraordinarily onerous restrictions then to be imposed would give the lie to the argument that the provisions are only preventive and not punitive, and that they are designed purely to ensure that those with a serious and detailed involvement either in a previous commission of serious crime or in a likely future one need to be controlled. Those are not the individuals who are likely to be subject to such an order. If the Minister were to insist on retaining the provision in the Bill, I suspect that his other arguments would be substantially undermined.

Vernon Coaker (Labour, Gedling)

It is fair to say that 30 was an approximate figure for the number of orders that we thought might be used by the courts in any one year. Of that figure, I do not expect that many would be used on the back of a conditional discharge.

However, one could foresee a situation in which it might be useful for the courts to have the power to impose a serious crime prevention order, should they believe that to be appropriate in the circumstances. For example, suppose someone who is a serious criminal has been convicted of a serious offence, however defined—in schedule 1 or at the court’s discretion—but is too ill or old to go to prison. In those circumstances, people are sometimes given conditional discharges, even though they have committed serious offences.

In that situation, it might be that a serious crime prevention order could be given to the individual concerned. The person could communicate, so one could make them the subject of a serious crime prevention order by saying that there will be restrictions on their communication. That is one example of a situation in which such an order might be appropriate. There might well be others. A conditional discharge is sometimes given to somebody who is found guilty of a serious offence. In those circumstances, the court ought to have the ability to use a serious crime prevention order if it thinks it appropriate.

Jeremy Wright (Conservative, Rugby and Kenilworth)

I suspect that, in the circumstances that the Minister has described, it is far more likely that the criminal court would impose a suspended sentence rather than a conditional discharge, which is a wholly different response to such a situation.

Vernon Coaker (Labour, Gedling)

The court might well give a suspended sentence, but, with respect, I am talking about a situation in which it gives a conditional discharge. I take the hon. Gentleman’s point that the court might well give a suspended sentence. Given that I have conceded that point, however, he must concede that it might also give a conditional discharge, in which case a serious crime prevention order would be appropriate.

James Brokenshire (Conservative, Hornchurch)

Will the Minister contemplate the fact that under the amendment, it would be open to the court to acknowledge that, if a conditional discharge order was given, a serious crime prevention order would not be applicable? Will he weigh that as a factor in determining what an appropriate sentence would be?

Vernon Coaker (Labour, Gedling)

My understanding of the amendment is that it would make it impossible for the Crown court to make an order where somebody has been made the subject of a conditional discharge. That is absolutely the point of the amendment. With respect to the hon. Gentleman, that is the point of disagreement. I think that there might be circumstances in which a serious crime prevention order should be available to the court where somebody has been conditionally discharged.

Subsection (7) is drafted to show that the orders are not a form of punishment and that they must be viewed separately from the disposal that the court makes in relation to a person who has been found guilty of a serious offence. The court may impose an order only in addition to the punishment that it hands down for the offence, or in addition to a conditional discharge. That is an important point of principle: in this area, as in others, the orders are not designed as an alternative to the criminal process of prosecution and punishment.

The practical effect of the amendment, which is the effect that I believe the right hon. and learned Member for Sleaford and North Hykeham is trying to achieve, would be to ensure that an order would not be available to the court where its disposal was a conditional discharge. I do not agree with that; the proposed subject of the order might have been conditionally discharged, but would also have just been found guilty of a serious offence. Notwithstanding the fact that the court has considered it expedient to issue a conditional discharge, it should be open to the court to put in place a reasonable, proportionate order, if it considers that such an order would protect the public by preventing, restricting or disrupting the subject’s involvement in serious crime. For those reasons, I hope that the right hon. and learned Gentleman will withdraw his amendment.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I wonder whether we can see a way forward here. I like to be collegiate occasionally. The Minister is wrong when he says that the orders are not intended as an alternative to prosecution. We know full well that they are; page 31 of the White Paper makes that wholly plain.

Vernon Coaker (Labour, Gedling)

We discussed this in the previous sitting. It is actually the Green Paper. Whatever it says, we are discussing the Bill. I have made it quite clear, as does the Bill, that we do not see the orders as an alternative to prosecution.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

If it waddles like a duck, looks like a duck and sounds like a duck, it is a duck. This legislation is an alternative to prosecution because it sounds like a duck, waddles like a duck and looks like a duck—and it has been described as a duck in previous publications. It is a duck.

I am perfectly willing to accept that the Minister has made a valid, though narrow, point in relation to conditional discharge. I can see that it is a theoretical possibility that there are individuals who are so ill or so old that they are unlikely to go out and commit serious offences, but who might make suggestions to third parties who do so. I hope that he, in turn, will accept that this provision is a creeping mechanism that allows serious orders to be made in respect of fairly trivial matters—each of us has a point.

There is a way forward. I suggest that the Minister amend the Bill on Report so as to include the concept that the court has made a conditional discharge by reason of some personal circumstance associated with the person who is the subject of the conditional discharge. We can talk about whether there should be specific reference to old age, sickness, or anything else. I accept that his point has merit, so if he were to ring fence the concept in order to reflect it, he would find me extraordinarily collegiate. On that basis, I beg to ask leave to withdraw the amendment.

Vernon Coaker (Labour, Gedling)

In constructive spirit in which this Committee has been conducted, I can tell the right hon. and learned Gentleman that I have heard what he has said and we will consider his points—I meant to say that when we were debating the amendment. I am not making any commitment, but I thank the hon. Gentleman for trusting me to do that.

Clause 24

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I beg to move amendment No. 127, in clause 24, page 15, line 9, at end insert—

‘(1A) An appeal against a decision of the High Court in relation to a serious crime prevention order may be made to the Court of Appeal by—

(a) the person who is the subject of the order;

(b) the relevant applicant authority; or

(c) by any person who was given an opportunity to make representations in the proceedings concerned by virtue of section 10(1), (2) or (as the case may be) (3).’.

When I drafted the amendment I had not read section 16 of the Senior Courts Act 1981, and I still have not done so; I was under some pressure to prepare my amendments as fast as I could. I hope that the Committee will accept the general proposition that every person who is affected by a serious crime prevention order should have the right of appeal. Subject to the terms of section 16 of the Senior Courts Act 1981, the Bill does not make provision for the person who is the subject of the order to appeal. If the Minister can tell me that that provision gives the person who is subject to a serious crime prevention order the right of appeal, I need not speak any further to this amendment. If he wants to intervene, I shall give way.

Vernon Coaker (Labour, Gedling)

It is my understanding that the amendment is unnecessary for the reasons that the right hon. and learned Gentleman gives.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

If that is right, I shall withdraw the amendment and if it is not, we will have to come back to the matter on Report. Would the Minister be good enough to write to me to confirm what he has said? I shall go and look at section 16.

Vernon Coaker (Labour, Gedling)

Perhaps it will be unnecessary for me to write to the hon. and learned Gentleman and helpful to the Committee if I read my statement into the record.

I fully appreciate the hon. and learned Gentleman’s intention in tabling the amendment. Like him, I have been very concerned to ensure that the Bill provides the appropriate rights of appeal. However, I hope that I can reassure the Committee that the rights are already provided for in other legislation and that the amendment is unnecessary.

Clause 24 provides a right of appeal for third parties. Without the clause, they would not have such a right. The appeal rights of the applicant authority and the subject of the order, as parties to the original proceedings, are already provided for in the Senior Courts Act 1981, or the Supreme Court Act 1981 as it is currently known. Therefore, I hope that the right hon. and learned Gentleman feels reassured enough to withdraw his amendment because its effect is already provided for.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I beg to ask leave to withdraw the amendment.

Clause 26

James Brokenshire (Conservative, Hornchurch)

The clause relates to enforcement and offences of failing to comply with a serious crime prevention order. It states:

“(1) A person who, without reasonable excuse, fails to comply with a serious crime prevention order commits an offence.”

Subsection (1) refers to a person. However, when we look at the subsequent provisions contained in, for example, clause 28, it is clear that a company, as a legal person, may be subject to a serious crime prevention order, hence the subsequent provisions relating to winding up, which the Minister will discuss in relation to the debate on that clause. Is the Minister clear that in terms of the breach of the order, the person is the corporate entity? Are officers and directors of a company implicitly subject to that order or is there a need for a separate and specific serious crime prevention order to apply to those individuals as opposed to the order applying to the legal person—in other words the company?

Vernon Coaker (Labour, Gedling)

Such is the detail of that question, I may need to reflect on it and come back at a later point in another clause.

Clause 27

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I beg to move amendment No. 128.

This may be quite an important amendment. It is an amendment to the forfeiture powers contained in the clause. I draw two specific facts to the attention of the Committee. Subsection (2) makes it plain that an order can have an effect in respect to a property in which a third party has an interest. When one approaches the clause, one assumes that the only person who has an interest in the property which is capable of being forfeited is the person who has committed the substantive offence under clause 26. Clearly and inevitably, one must recognise that other people may have an interest. They may be partial owners or have an equitable interest and so on. They may be a hire purchase company, for example. Therefore, third parties can have an interest in property which is the subject of the forfeiture order.

Subsection (5) states that the forfeited property can be destroyed, and that is a pretty permanent outcome. Therefore, a property that is subject of a third party claim can be destroyed under the forfeiture order. That is the background, which is quite serious. One looks at the forfeiture powers in the clause to see if one can find any guidance over the approach that the courts will adopt. I have heard the Minister many times say, “Don’t worry, Mr. Hogg, it is all in the convention.” I have in front of me the Human Rights Act 1998 and, in particular, the convention. I suspect that the Minister will say it is covered by article 1 of the first protocol, which provides that

“every natural legal person is entitled to the peaceful enjoyment of his possessions.”

So far, so good. It goes on to say:

“No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”

That is motherhood and apple pie. The article continues:

“The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

That is pretty general stuff. If I were a person whose interest in property would be affected by a forfeiture order, I would not draw much comfort from the article; I would have some difficulty in spelling out the approach that the court would adopt. We are saying of and to the courts, “You are going to be the legislators, because by your interpretation of this article, you are going to provide the safeguards that Parliament has not provided.”

That is deeply offensive; it is the business of Parliament to spell out in legislation the criteria that the court should adopt in the context of such matters. In any event, such protection as is afforded in article 1 and elsewhere in the convention is so much in the hands of the court that it leads me to think that, unless we put the provisions that I contemplate in the amendment into the Bill, we are neither providing proper protection nor doing our duty.

I am perfectly willing for the Minister to say that the language of the amendment is defective. So it may be, and we can talk about that, but the concept of “just, necessary and proportionate” should appear in the Bill.

Vernon Coaker (Labour, Gedling)

I point out to the right hon. and learned Gentleman that subsection (2) gives people with an interest in property the right to make representations to the court, which will consider whether forfeiture is reasonable and proportionate. We have included that proposal to ensure that it is reasonable.

The right hon. and learned Gentleman has done me a great service: he has saved me having to read out article 1. Without wishing to be sarcastic or flippant, there is a debate to be had on the interpretation of these articles and their application. On the protection of property, article 1 says that where it is in the public interest, consistent with the law of the country, just, and done appropriately through the courts, forfeiture of property is not inconsistent with compliance with human rights legislation.

The right hon. and learned Gentleman may say that it is not appropriate in these circumstances, or that he does not agree with it, but that does not make it any the less a fact that it is included in the protocol, for the very reasons that we are discussing: when the state wishes to pursue a particular line in order to prevent crime or to prevent people from benefiting from crime, they can clearly use that part of the protocol.

The amendment is unnecessary, and I shall try not to reiterate earlier points in explaining my reasons for rejecting it. The clause is a way of ensuring that those involved in serious crime do not seek to flout its provisions. As well as the offender risking imprisonment for breach of an order, it will be open to the court to order the forfeiture of anything in the offender’s possession at the time of the offence, and that it considers to have been involved in that offence.

For example, when someone has been found guilty of an offence relating to the distribution of child abuse material via the internet, it might be reasonable to place an order that forbids them from owning a personal computer. That would force them to use public access computers, from which they could not disseminate such material, if they needed access to the internet. If they were then found, in contravention of the order’s terms, to own a personal computer, it is reasonable that it should be forfeited. That is the purpose of the clause.

The amendment is unnecessary, because we do not need—as I have said on a number of occasions—to tell the High Court to act justly and proportionately in operating this provision, as it will do so whether we tell it to or not. For that reason, I resist this amendment and hope that the right hon. and learned Gentleman will ask leave to withdraw it.

James Brokenshire (Conservative, Hornchurch)

The Minister mentioned the seizure of computers in the context of, say, a child pornography case. I want to be clear about something. Is he saying that, if an offence is committed and the court rules that an order is made, there is not a right of forfeiture in law under other legislation and, therefore, there is a need to make a serious crime prevention order? Alternatively, would other provisions in other statutes apply to enable that forfeiture to operate? It is important that we are clear about whether he is saying that an SCPO would be required to cover the facts that he has given.

Vernon Coaker (Labour, Gedling)

This is an additional way of ensuring that crime is prevented. With those explanations, I hope, as I said, that the right hon. and learned Gentleman will ask leave to withdraw the amendment.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

No, I will not. Although the Minister has been gracious in his reply, I disagree with him. He is right in saying that clause 27(2) enables third parties to make representations, but there is no guidance at all in the Bill about the criteria that the court should address when listening to those representations. The Minister will say, “Well, then you go to the convention.” That is so. I shall not read from the convention again, though, because I have done so once.

There is nothing in article 1 of the first protocol that says anything about justice and proportionality. Whether or not the courts will apply a test of justice and proportionality will apply, first, in accordance with their determination as to whether any article applies and, secondly, in accordance with their construction of what is justice and proportionality in the context of the intended objectives of the legislation and the protection afforded by the article. The Minister may or may not be right in saying that the courts, on a forfeiture application, would construe justice, necessity and proportionality as necessary criteria. In any event, these are sliding scales that reflect the gravity of the particular facts of the case.

I urge the Committee as robustly as I can to consider a further point. Time and again, the Minister has said, “Don’t worry, the convention will always apply.” The truth is that it will not always apply; it will sometimes apply. If the Minister says, “Right, then Parliament never need incorporate into the Bill the protecting clauses that historically we have always thought necessary—not even in criminal cases”, one might as well remove the words “knowingly and intentionally”, which are often found in criminal legislation, because the Minister will say, “Oh, don’t worry, articles 6.1 and 6.2 will apply.” However, this is not the way forward.

The courts are a necessary safeguard, but they do not relieve us of our obligation. We should be in the business of spelling out in legislation what we deem to be the necessary criteria and protections, and we should not rely on general language in the articles that may or may not, depending on the circumstances, apply in a particular case. This is not the way forward. We have a duty and we are not performing it. For that reason, I will not beg to ask leave to withdraw the amendment.

Clause 28

John Bercow (Conservative, Buckingham)

With this it will be convenient to discuss the following: Government amendments Nos. 37 to 49.

Government amendments Nos. 200 and 201.

Government new clause 15—Powers to wind up: supplementary.

James Brokenshire (Conservative, Hornchurch)

I rise briefly to seek clarification on petitioning and the powers of winding up. From my reading of clause 28(1), those are intended to apply when an offence has been committed under section 26 and the Director of Public Prosecutions, the Director of Revenue and Customs Prosecutions or the director of the Serious Fraud Office determines that it would be in the public interest to seek a petition to wind up the company; in other words, an offence has been committed and that is deemed the appropriate way to dispose of the breach.

My question about the amendments and how they apply relates to the factors that the directors would take into account in determining what is in the public interest. Are they intended to be as wide as possible? Can the Minister give examples of what would be appropriate in the circumstances? We are talking about corporate entities and there would have been some sort of breach. In some ways, the issue goes back to my intervention during the debate about the liability of directors during our discussion of clause 26. I want to gain an understanding of how the Bill is intended to operate and how discretion is intended to be applied in allowing the winding up of companies for such breaches.

Vernon Coaker (Labour, Gedling)

The hon. Gentleman is right; as he says, the clause deals with companies that have breached a serious crime prevention order. In such cases, the applicant authorities can go back to the court to seek a winding-up order against such companies. The hon. Gentleman asks what sorts of offences the companies would have to have committed. The obvious answer is that if the company had not complied with the conditions imposed by the serious crime prevention order, it would clearly be in breach of the order, and the applicant authority would go back to the court to seek the winding-up order.

James Brokenshire (Conservative, Hornchurch)

I understand that point. Obviously, the Minister has mentioned the first limb of the test for whether an offence has been committed under clause 26. I was seeking to press him on the second limb—the application of the consideration of the public interest.

Vernon Coaker (Labour, Gedling)

The hon. Gentleman should come back to me if I have misunderstood his question. If he is asking me how we define “in the public interest” in respect of determining whether a company should be wound up, that would be a matter for the court, which would determine what was reasonable and proportionate. The public interest test is the prevention of crime and the reduction of harm. The conditions placed on the company are about reducing harm and preventing crime; if they are broken, the applicant authorities will apply for a winding-up order. That is the public interest test, which we want to be observed.

James Brokenshire (Conservative, Hornchurch)

I do not want to labour the point, but to be clear, we are talking about the application rather than the discretion of the court, and about the determination by the director, rather than the court, on whether the application should be made.

Vernon Coaker (Labour, Gedling)

The point is that the applicant authorities will make a general consideration—

Joe Benton (Labour, Bootle)

I remind the Committee that with this we are discussing the following: Government amendments Nos. 37 to 49

Government amendment No. 200

Government amendment No. 201

Government new clause 15—Powers to wind up: supplementary.

Vernon Coaker (Labour, Gedling)

Good afternoon, Mr. Benton. Welcome back to the Committee. You will notice that there is a bit of a change of membership, but we shall still be proceeding in good heart and with good debate.

I wish to turn to the point made by the hon. Member for Hornchurch in response to my formally moving the various Government amendments. He referred to what the applicant authorities will give consideration to when deciding whether it is in the public interest to make an application for the winding up of a body. To put the matter in context, I wish to emphasise the two-part nature of the winding-up process—as the hon. Gentleman did. When an organisation has been convicted of the offence of a breach of an order, the applicant authority will consider whether it is in the public interest to petition the court to have it wound up. It is then up to the court to consider separately whether it is also just and equitable for the organisation to be so wound up. I did not mean to refer to the director of the applicant authority this morning. I apologise.

The purpose of the clause is to deal with instances, even though they might be few, when an organisation is being used effectively as a shell or front for serious criminal activity, is producing or doing little or nothing of worth and is being used to cause harm through serious crime. The applicant authorities will be considering that when looking at the public interest and, effectively, whether the organisation is still a legitimate concern and working towards a legitimate legal end or whether it is simply a vehicle for criminal purposes.

As I made clear, when the latter is the case, it will still be for the courts to make a separate determination whether it would also be just and equitable for the organisation to be wound up. That will include a consideration of what effect the winding-up will have on third parties, such as the customers or creditors of the organisation. We believe that it is an effective sanction with adequate protections in place to ensure that it occurs only when appropriate.

All the amendments are technical and would improve the Bill and, now that I have answered the hon. Gentleman’s specific points, I hope that the Committee will support them.

Clause 29

Clause 30

Vernon Coaker (Labour, Gedling)

In asking the Committee to support the clause, I hope that it will be helpful if I respond to the hon. Member for Hornchurch who asked, in reference to “a person” under clause 26, about orders against corporate bodies. I had promised to return to that issue this afternoon.

If a body corporate is given a serious crime prevention order—as set out in clause 30 and other clauses—it will be capable of being prosecuted for breach if it does not comply with the terms of the order. Therefore, the reference to “a person” under clause 26 includes not only an individual, but a body corporate, a partnership and an unincorporated association.

However, the hon. Gentleman was also interested in the position of officers or employees of a company. For example, clause 32—as does clauses 31—provides that, if an offence under clause 26 is committed by a body corporate, with the consent or connivance of an officer of the body corporate or a person purporting to act in that capacity, the officer as well as the body corporate is guilty of the offence under clause 26 and is liable to be prosecuted. In that context, “officer” means a director, manager, secretary or other similar officer. There are similar provisions in relation to partnerships and unincorporated associations in clause 31(8) and clause 32(7) respectively. I hope that that answers the hon. Gentleman’s question.

James Brokenshire (Conservative, Hornchurch)

I welcome you to the Chair, Mr. Benton, and I express my pleasure at serving under you in this Committee. I thank the Minister for that response and the clarification in relation to the role of officers in that context, which is helpful. I may have one or two further questions about unincorporated associations with which I hope he will be able to assist me when we get to that clause.

Clause 32

James Brokenshire (Conservative, Hornchurch)

There is a small technical point about unincorporated associations. Again, this relates to the circumstances where a serious crime prevention order has been taken out against an unincorporated association. The clause makes it clear that actions are to be brought in the name of the unincorporated association, rather than any specific individuals. It also makes it clear that if there is a fine attached to an offence, it should be paid out of the funds of the association, rather than by any specific individual. The Minister refers to the possibility of connivance having relation to the clause.

Obviously, an unincorporated association, by its nature, is a group or a body of individuals who make up that association. Its membership may change from time to time. The Minister may not be able to answer this question immediately, but a thought that crossed my mind in relation to fines is that the Bill says that fines will be paid out of the association, but if the association does not have such funds, in those circumstances normally one would look in terms of individual liability that would attach to the members. I know that there are specific provisions that govern when someone is deemed to be a member, or when the membership changes, which are contained in the earlier part of the clause, but I seek clarification or assurance from the Minister as to whether the situation has been envisaged where a fine has been levied but there are insufficient assets from the unincorporated association to meet such a liability, and what would happen in such circumstances.

Vernon Coaker (Labour, Gedling)

I reiterate that persons, or whoever is connected with the unincorporated association, will be liable only if they have conducted a conspiracy that did not meet the serious crime prevention order conditions. That gives me the chance to stress that that would not be so if someone were negligent. That is the important point. Subsection (7) states:

“If an offence under section 26 committed by an incorporated association is proved to have been committed by the consent or connivance of an officer of the association, he (as well as the association) is guilty of the offence and liable to be proceeded against and punished accordingly.”

What one would have to look at in terms of the individuals who may have connived or conspired to subvert, is whether it would be appropriate for them to be held liable. That would be a decision for the court, and it would be a matter of whether that would be reasonable or not.

James Brokenshire (Conservative, Hornchurch)

To assist the Minister about the terms that I was making, I entirely accept his point about the connivance argument. I was looking at subsection (6), which deals with the fine imposedon the association and what might happen in circumstances where the funds of the association were not sufficient to pay the fine if it was levied at a high level. I was seeking clarification on that matter. I entirely accept the Minister’s point in relation to connivance.

Vernon Coaker (Labour, Gedling)

I am sorry; I slightly misunderstood the point that the hon. Gentleman made. With respect to subsection (6), our intention would certainly be to pursue the funds of the association rather than to pursue individual members.

Clause 34

James Brokenshire (Conservative, Hornchurch)

I beg to move amendment No. 18, in clause 34, page 22, line 35, leave out ‘civil’ and insert ‘criminal’.

Joe Benton (Labour, Bootle)

With this, it will be convenient to discuss the following amendments: No. 19, in clause 34, page 22, line 36, leave out subsection (2).

No. 20, in clause 35, page 22, line 40, leave out ‘civil’ and insert ‘criminal’.

No. 21, in clause 35, page 23, line 1, leave out subsection (2).

No. 22, in clause 35, page 23, line 3, leave out subsection (3).

James Brokenshire (Conservative, Hornchurch)

I fear that we may be going over some old ground, but I hope that, at least, we will do so in a slightly different way, rather than simply repeating some of the arguments that have probably been rehearsed in great detail in relation to this issue, which centres on whether the orders that are to be sought under the Bill are of a civil nature or otherwise.

Clause 34(1) states:

“Proceedings before the High Court in relation to serious crime prevention orders are civil proceedings.”

We have obviously debated previously the issue of the standard and burden of proof associated with these orders and reference has been made to the McCann judgment as it applies to antisocial behaviour orders. In particular, we debated whether the McCann judgment would operate in relation to the orders that are envisaged under this Bill, and therefore whether what has been termed the heightened civil standard might apply.

I note that the Minister and his colleagues have said that that is the intention behind the drafting of the Bill—that although it is stated as being a civil order and although it is stated that the court should apply a civil standard of proof in relation to serious crime prevention orders, it is understood that, following the McCann judgment, in essence a higher standard would, notwithstanding, still be applied in accordance with the terms of that judgment.

I suppose that we come back to some of the fundamental issues and also to trying to provide some sort of certainty in relation to the Bill, to understand very clearly what is intended. The judgment of Engel v.The Netherlands (No. 1) in the European Court of Human Rights effectively established three standards to determine whether proceedings are regarded as criminal for the purposes of the European convention. That judgment said that there are effectively three tests: the domestic classification, in other words what the domestic law classifies the proceeding as; the nature of the offence, and finally the severity of the potential penalty that the defendant risks incurring. The Engel case was referred to in the leading judgment in the McCann case, when it was suggested that the third factor—in other words, the severity of the potential penalty—was the most important factor in determining whether a matter was regarded as criminal.

If we are saying that a higher standard is being applied in relation to ASBOs and one then looks at the potential impact of orders under this Bill, I thinkthat it is accepted—even if there is a difference asto whether such orders are a punishment or a prevention—that they are potentially very significant, in terms of their ambit, scope and impact. Therefore, if the suggestion is that the potential penalty is the relevant factor in deciding whether a matter is regarded as criminal or not, I would submit that there is a very strong argument for saying that this matter should be regarded as criminal.

In the context of the McCann judgment and those relevant tests, for the sake of certainty and clarity about the standards that we seek to adopt, it would be better to include a measure in the Bill to make absolutely clear the burden of proof and the expected standards. Although I note what Ministers have said, there is still the potential for a legal argument about whether McCann applies, and if so, the way in which it applies in a given circumstance. The Bill is being introduced after the McCann judgment, and we do so in conscience and knowledge of what we are doing.

If the Bill says that the proceedings are effectively civil proceedings, and that as a consequence, the standard of proof that the court will apply is the civil standard of proof, notwithstanding the McCann judgment, it could be argued that, because of the decisions and wording in the Bill, we as Parliament are consciously determining that the McCann judgment should not apply. The Minister may say that that is not the intention, but it is better to be clear in law about what we are talking about, hence the reason for the amendment to clause 34 and the amendment to clause 35, which would state that the proceedings should be treated as criminal proceedings, and delete subsection (2) on the burden of proof.

I know that those arguments and issues have previously been debated differently, but it is right and proper that we are as clear as possible about the requirements for proof, particularly as a consequence of the potential penalties that may arise. To use the words of my right hon. and learned Friend the Member for Sleaford and North Hykeham, if it looks like a duck, perhaps it is a duck. If that is the case, and we are considering a criminal issue, let us put it in the Bill, so that the courts are certain and we are certain about what we are discussing.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I rise to support the amendments in my name, and to reinforce the speech that my hon. Friend the Member for Hornchurch made. It is worth considering what the clauses say. Clause 34(1) says that the proceedings are “civil proceedings”, not criminal proceedings. Subsection (2) states that

“the standard of proof to be applied by the court in such proceedings is the civil standard of proof.”

I shall pause at that point. Anybody who comes to the Bill afresh, and without any background knowledge at all, will conclude that clause 34 means what it says, namely that for all purposes the proceedings are to be deemed civil, and that the standard of proof is to be that of the civil court. That is what it says.

It is of course true that the courts will approach the matter in the context of the McCann judgment, which is the judgment of the House of Lords. However, let us begin by reminding ourselves that the House of Lords determined that approach in a particular fact-related case, namely McCann, and it construed an ASBO, not a serious crime prevention order. It is possible—it may even be likely—that the courts would apply to the serious crime prevention orders the kind of reasoning that they applied to ASBOs, but there is no certainty that they would. Why should we assume that the courts will give to the phraseology in clause 34 a different interpretation from that which appears in the Bill? There is no certainty of that, and my hon. Friend the Member for Hornchurch makes a very sound point. The courts will take into account the fact that Parliament is acting against the background of knowledge of the McCann case—in fact they might assume that we are putting this clause into the Bill so as to disapply the approach that was taken in relation to that judgment.

Kali Mountford (Labour, Colne Valley)

Is not the point—perhaps this goes back to this morning’s debate—that for this to be a criminal proceeding, a crime must have taken place, and we must be considering a criminal case? In fact, this is about a prevention order, so it must be a civil matter. Surely I have not misunderstood.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Our primary concern is with the consequence of stating that the matter is civil rather than criminal. Looking just at the Bill and leavingaside McCann and the underlying judgments, the consequence is that the standard of proof is different—it is the balance of probabilities, not beyond a reasonable doubt. Also, although less so than before the Criminal Justice Act 2003, fundamentally different rules are applied to hearsay and there are other differences between the jurisdictions. Once we assert in the Bill that it is a civil proceeding, if we do not apply McCann we have a different standard of proof. That is what is objectionable having regard to the severity and the onerous effect of the orders and everything to do with renewal.

Jeremy Wright (Conservative, Rugby and Kenilworth)

Would my right hon. and learned Friend agree that it is more complicated even than that? Not only do we have the indication of the McCann judgment compared with what the clause says, but there is also what the Minister has said during our deliberations in Committee, namely that the standard of proof should be almost identical to the criminal standard. There is an extra layer of confusion, which we ought to resolve by changing the Bill.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

That is true. Similar language was used in the other place, where the Minister said “virtually the same”, “nearly the same” and so on.

Another important point, which has been made in this Committee before and which partly answers the hon. Member for Colne Valley, is that we need to look at paragraph 3.4 on page 32 of the Green Paper, which was published after the McCann judgment. It says:

“We believe these...standards usefully reflect the different levels of threat posed to society by terrorism and anti-social behaviour. In the case of organised crime, the potential harms are somewhere between, and we would envisage stating on the face of the legislation that to impose an order the courts should be satisfied on the balance of probability that the test is met.”

Let us pause there; this is very important. We appear to be putting in the Bill precisely what the Government say in page 32 of the Green Paper that they want to put in. The motive for that is stated explicitly. It is in order to impose a test and that

“the courts should be satisfied on the balance of probability”

that that test is made. When the courts come to construe this, they will start by looking at the language of the Bill. They will see that the burden of proof is a civil burden; then they will ask, “What about McCann?” They will then go—or feel able to go—to the Green Paper, because it pointed, at least at one stage, to the Government’s intention.

They will see that the Government have taken account of the McCann judgment and have decided that they want to disapply it, and that they intend to do so in the Bill. Lo and behold, there is language in the Bill that purports to have that effect. I should have thought that the courts would be very constrained not to hold that the standard of proof was that requiredin the ordinary civil case, namely the balance of probability.

Vernon Coaker (Labour, Gedling)

I have often been asked by the right hon. and learned Gentleman to read things into the record because, he says, that is extremely importantin terms of how the courts will interpret the Government’s intentions behind legislation. The right hon. and learned Gentleman has heard me say on numerous occasions—Baroness Scotland said this in the House of Lords as well—that we expect the civil standard of proof required under clause 1(1)(a) to be as close as to be virtually identical to the criminal standard of proof; in other words, beyond reasonable doubt. We have said that the McCann judgment will be applied on a sliding scale; the standard here will be “beyond reasonable doubt”, but in other parts of the Bill, it might be “on the balance of probability”.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I have no doubt that, when appropriate, the courts will listen carefully to what the Minister has said. It is important, however, to keep in mind that the courts, as a general rule, look only to the words of Ministers when there is ambiguity in the language of the statute, but it is far from clear that there is ambiguity in the language of the statute before us; the language is clear and the statute is being enacted post-McCann. In other words, it could well be argued that we are seeking explicitly to depart from the consequences of McCann. That was the point made by my hon. Friend the Member for Hornchurch. I think that he is right.

I recognise the alternative argument: the concept of the civil standard of proof being applied on a sliding scale to such cases approaching criminal ones. However, that arises, first, if the court thinks that the language is not plain, and secondly, if it thinks that the principles set out in McCann apply to a different class, but not wholly dissimilar kind of order. We are making some assumptions about that. That takes me to the real point on which I want to focus. Given that the Minister’s purpose, as I understand it, is to depart from the language of the Green Paper and to assert the criminal standard, why on earth are we not saying so? I come back, time and time again, to my underlining theme—I am sorry if I am being a bore—that it is the business of Parliament, of which this Committee is a part, to state what it intends. If it intends to protect the citizen, it should say so in terms and not leave a cloud of ambiguity and uncertainty hovering around such matters. I ask the Committee to think again.

Incidentally, if I had had the opportunity, I would have made this point during the Prime Minister’s statement: if we are giving authority to Parliament over the Executive, it is all well and good, but actually none of his proposals will be of much relevance, unless or until Members of this House begin to assert their independence from their own Whips Offices. I did that years ago!

Joe Benton (Labour, Bootle)

Order. I do not think that we should have a repeat of this.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I am not just semi-detached; I am in a different estate.

Crispin Blunt (Conservative, Reigate)

Just be careful; you are from Lincolnshire.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Lincolnshire is a very independent-minded county, as we saw to our cost four or five days ago. But that is a different matter.

The point is that if I am right about this—and I think that I am—it is the business of hon. Members to assert those principles, notwithstanding advice from their Front-Bench colleagues. It is in that collegiate spirit of trying to capture in the votes that I hope the Committee will approach this matter.

Geoffrey Cox (Conservative, Torridge and West Devon)

It is in the spirit of asserting my independence as a Back Bencher that I disagree, with diffidence, with my right hon. and learned Friend. The Minister will no doubt tell us that the courts are likely to apply a higher standard of probability to the findings of fact in fraud or criminal cases, for example. I concede that almost certainly that will be the case. Under the common law, the courts have long operated a sliding scale of probability, depending upon the nature of the allegation. I would be astonished if the courts decided, under clause 1, to apply a different test.

At the risk, however, of having already gone too far in disagreeing with so venerable a colleague as my right hon. and learned Friend, I am about to add a “but”. I agree with him that a standard of probability is still a standard of probability, but whereas a jury would be asking, “Are we sure that this man is guilty of this crime? Are we certain that he has done what the prosecution says he has done?”, a judge will ask himself or herself an entirely different question: “Even though this is a serious allegation, do I have a high degree of confidence that it is more likely than not that he has done what the director of the Serious Fraud Office, for example, has said?”

That test cannot be converted into the test of reasonable certainty that a jury applies in a criminal case. It is simply playing with language, a matter of pure semantics, to suggest that the test adopted in McCann is equivalent or analogous to the test adopted by a jury in a criminal court.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

My hon. and learned Friend is entirely right, but the test could be put slightly differently. In a criminal case it is, “Are you sure?” In this case, a judge would be saying “Am I virtually sure?” Those are not the same.

Geoffrey Cox (Conservative, Torridge and West Devon)

No, because in one case the High Court judge can say to himself, “I am not sure that this man has done what the director has said.” The directors of Revenue and Customs or the Serious Fraud Office are the type of people who will come to a judge asking for an order. The judge will be able to say, “I am not sure that he has done it, but I am confident that it is highly likely that he has,” and that will be sufficient. That will be the test, and I concede to the Minister that, at least when making the final inference on criminality, a judge is likely to consider whether the person in question is highly likely to have done what the director says, not whether he is sure. That is not the same test, and, with respect, whatever the Minister reads into Hansard, which will be looked at only in extremely rare cases under Pepper v. Hart, I do not suppose that his words—

Vernon Coaker (Labour, Gedling)

The only reason why I read it into Hansard was that the right hon. and learned Member for Sleaford and North Hykeham told me in relation to a number of other matters that it was extremely important for me to read such things into Hansard. I am not a barrister and I do not know about courts, but I was told that that was an important thing to do.

Geoffrey Cox (Conservative, Torridge and West Devon)

My right hon. and learned Friend is not right about everything.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

You are taking liberties!

Geoffrey Cox (Conservative, Torridge and West Devon)

I am. He is right about most things, but it is unlikely that a court would resort to Hansard to interpret what seems a straightforward clause that it could make sense of under the ordinary rules of common law and statutory interpretation.

Crispin Blunt (Conservative, Reigate)

I am following carefully my hon.and learned Friend’s arguments on this extremely important point. Not being a lawyer, I had understood that there was a civil test and a criminal test—one on the balance of probabilities and one on proof beyond reasonable doubt. The Minister has referred to a sliding scale and my hon. and learned Friend says that that concept exists. My concern about the Minister’s remarks and the comments in the Green Paper is that the sliding scale works in reverse of what one would expect, so that the more serious the offence, the more likely it is that a lower standard—

Joe Benton (Labour, Bootle)

Order. That was a slightly lengthy intervention.

Geoffrey Cox (Conservative, Torridge and West Devon)

I understand my hon. Friend’s concern, but, with respect to him and to my right hon. and learned Friend the Member for Sleaford and North Hykeham, I do not think that that is a serious problem. There will be a sliding scale of probability and when considering the criminal aspects of an allegation the judge will ask himself, “Is it highly likely that this man did it?” However, he will not ask himself, “Am I sure he did it?” Those two tests are fundamentally different. One cannot equate one with the other. There is a gulf a mile wide between them.

The reason why our criminal trial process insists on the latter test—namely, “Am I sure he did it beyond reasonable doubt?”—is to avoid the many terrible miscarriages of justice that have been brought to the public’s attention during the past 20 or 30 years. Certainty—being sure beyond reasonable doubt—eliminates the prospect of injustice, especially when the penal consequences of such a finding are so serious. It is important to understand that there is a genuine difference.

The contention is made that the order is not a penal statute. It is suggested that it is a civil order and that it would be an exercise of civil jurisdiction. The Minister needs to consider closely the advice that he receives. The reality is that the European Court of Human Rights will limit the number of consequences ordinarily following upon conviction that can be imposed as a part of a civil process. There will come a point when the Court will say, “You are doing so much to this person, based on the civil standard of proof, that although you call it a civil process it is in truth penal.”

The European Court of Human Rights has already said that about the legislation of other European countries. In my judgment, there is a real risk that the Bill will be determined to be a penal statute because of the number of consequences that could flow froman ordinary conviction. [Interruption.] Before the Minister or the hon. Member for Colne Valley intervenes—in fairness, I should give way first to the hon. Lady—may I make a final point?

The consequences of conviction would ordinarily mean restraint upon one’s liberty and peril to one’s assets, which can be seized. Those consequences will flow also from the order. It is often said in court that imprisonment has two purposes: a punitive and a preventive one. One could therefore apply the civil element to imprisonment. One could provide in statute that although the court would be allowed to imprison a person, it would be a civil proceeding.

If we went that far, I have no doubt that the European Court of Human Rights would say, “That is just playing with language. That is applying the civil term, whereas in substance, this is a criminal penalty.” I believe that this provision is in danger of a similar finding, because in substance it is penal. Every sentence of imprisonment has a preventive element. This has a preventive element, but it also has penal consequences.

Kali Mountford (Labour, Colne Valley)

I am grateful to the hon. and learned Gentleman for giving way. I think that he is attempting to answer my question before I put it. He keeps saying, “Has he done it?” and asking whether the court will answer that question. The court would have answered that question when the person appeared before it for the original offence. The order is about future behaviour, and whether the order will prevent ongoing criminal behaviour. It is not punishment for the original crime. Is that not the case?

Geoffrey Cox (Conservative, Torridge and West Devon)

Illumination dawns about what the hon. Lady’s problem is. [ Laughter. ] I do not mean generally, but in relation to the Bill. If she returns to clause 2, she will see that the individual who is to be the subject of an order must have

“committed a serious offence in England and Wales”.

That is one thing. The proof of commission of a serious offence, as I recollect, is that such a person has been convicted of the offence.

However, subsection (1)(b) states:

“has facilitated the commission by another person of a serious offence”.

That does not require a conviction. Nor does subsection (1)(c), which states:

“has conducted himself in a way that was likely to facilitate the commission by himself”.

That is a meaningless subsection: I do not know how somebody conducts themselves in a way that is likely to facilitate the commission by themselves of a criminal offence. However, that does not require a conviction, so I say to the hon. Lady that under the Bill, people can be brought to court to be subject to a serious crime prevention order who have never been convicted of a criminal offence in their lives.

It would have to be proved—it would have to be established—that in the past the person had, for example, conducted himself in a way that was likely to facilitate the commission by another person of a serious offence, but he would not have had to be convicted of such conduct.

Joe Benton (Labour, Bootle)

Order. I am sorry to interrupt the hon. and learned Gentleman. I do not want to curtail the debate and I want to allow hon. Members to exercise as much freedom as possible, but it occurs to me that we are going round the houses a bit. Points are being made over and over again. I appeal not only to the hon. and learned Gentleman but to the entire Committee to try not to be repetitive, because it is clear to me in the short time for which the Committee has been sitting this afternoon that some of the points being raised were raised on previous occasions when I was in the Chair.

Geoffrey Cox (Conservative, Torridge and West Devon)

Forgive me if I have sounded repetitious, Mr. Benton. I was not in Committee this morning, so I do not know what you covered; I was merely answering the hon. Lady’s question. She is labouring under the misapprehension, as I see it, that somebody would have to have a criminal conviction first; however, they do not. That is why the clause with which we are dealing, on the burden and standard of proof, is in my judgment so dangerous. It allows somebody to be open to one of these orders—which are classed as civil and said only to be preventive, but which are really penal in nature, because of the potential consequences that would flow from them—on the civil standard of proof, which, however one may strain to approximate it to the criminal, simply falls far short of it.

The Committee is invited to pass in the clause a provision that allows somebody to have their liberty essentially removed and their assets stripped from them when a judge is not sure that they have done what they are said to have done, or that they will go on to do anything else like it. That is a very grave step. I say to the hon. Lady and to other Government Members that that has not, in 300 or 400 years of the development of the law, ever been deemed to be wise. It has always been regarded in the past as a step utterly inconsistent with the principles of the common law that guarantee our liberties.

Government Members must be certain in takingthis step that it is justified by proper arguments advanced by the Government, but what are they? The consultation paper does not reveal compelling arguments, in my judgment, for the imposition of so grave and so significant an order as this on the slender basis of a judge thinking that it is more likely than not, or even highly likely, that a man has done something like this.

I ask the hon. Lady, for whom I have the greatest respect, to reflect. Suppose that she puts herself in the position of a friend, cousin or neighbour—somebody whom she knows well—who is subjected to an application of this type because, at some time in the past, they may have acted in a way that was likely to facilitate the commission of a crime by another. The evidence is put forward and the judge has only to say, “Well, it’s more likely than not that he has acted that way.” I think that the hon. Lady is likely to be very concerned about that. Merely because it is the policy of the Government whom she supports does not mean that we should not question it, as my right hon. and learned Friend the Member for Sleaford and North Hykeham said.

Crispin Blunt (Conservative, Reigate)

When the Minister responds, I shall want to be clear on the issue of the sliding scale. I approach the issue not as a lawyer, having understood until I became a member of the Committee that the burden of proof was either the criminal one or the civil one that is based on the balance of probabilities. We have debated the sliding scale, but I would like the Minister to make clear to me, a non-lawyer, exactly what it means. As I understand it, it was introduced by McCann.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

No, it existed before that.

Crispin Blunt (Conservative, Reigate)

I might be wrong—it may have existed before. Nevertheless, I should be grateful if the Minister gave us some guidance on the meaning of the sliding scale and tell us where it comes from in the Lords. It is a new concept to me. If the sliding scale comes just from McCann, the Minister can say so, and if there are other underlying sources I should be grateful for an explanation of them.

If we are to have a sliding scale, we need to consider in which direction it goes. Does it mean that, the more serious the offence, the closer the burden of proof comes to the civil standard—the balance of probabilities—and that for less serious offences the burden of proof is the higher, criminal one? Serious potential offences might justify a lower standard of proof because of the threat that they present to society. That is where I understand us to be at the moment. Terrorism prevention orders are assessed on the balance of probabilities, whereas, under the McCann judgment, antisocial behaviour orders require a higher standard of proof.

I ask the Minister to try to ensure that, when we come to a decision, I as a non-lawyer am no longer unclear about the situation, because I suspect that one or two of the more learned hon. Members in the Committee might share my lack of clarity. I am quite certain that the Minister will be able to give an explanation that will be clear to a layman.

Joe Benton (Labour, Bootle)

Before the Minister replies, let me say that it will be in order for him to do so, although the matters in question have already been referred to. I ask the Minister to keep his replies brief in relation to those matters on which he has already responded.

Vernon Coaker (Labour, Gedling)

I will try to do that, Mr. Benton, and if I do not you will no doubt quickly call me to order. Let me thank my hon. Friends and Opposition Members for their contributions to the debate, because they went to the heart of this aspect of the Bill. We have been over much of the ground already, but it is relevant to clause 34 and indeed clause 35. Let me see whether my remarks can help, although at the end of the day it might well be that there is simply a difference of view in the Committee. I say that as someone who is a non-lawyer as well. Sometimes people make judgments rather than having scientific views on whether two plus two makes four.

We have already discussed the civil nature of the orders at some length, so I shall not go into great detail on amendments Nos. 18 and 22, which would change their nature. Suffice it to say that the orders are preventive, not punitive, so that making the proceedings criminal would be hugely inappropriate.

The point made by the hon. Member for Reigate goes to the nub of the matter and I shall come to it in a moment. The appropriate standard of proof is the flexible civil one, which we expect—in relation to the first element of the test in clause 1—to be the same as the criminal standard established by the House of Lords in McCann.

Mr. Hogg rose—

Vernon Coaker (Labour, Gedling)

I just need to develop my explanation, and then I shall give way to the right hon. and learned Gentleman. The sliding scale was not introduced by McCann. I know that he did not mean to do so, but, with respect, the hon. Member for Reigate got it the wrong way round. The more serious the allegation, the higher is the standard of proof. Involvement in serious crime is a serious matter, and will require a very high standard of proof. The sliding scale is a general principle of civil proceedings.

The point is an important one, so with permission, Mr. Benton, I should like to indulge in a slightly lengthier explanation. It is virtually certain that the standard of proof that would be needed under clause 1(1)(a) to satisfy a High Court

“that a person has been involved in serious crime (whether in England and Wales or elsewhere)”

would be almost the same as the criminal standard. In other words, it would have to be proved beyond reasonable doubt.

Clause 5(2)(a) refers to

“any act that the respondent can show to be reasonable in the circumstances”.

In those cases we would expect the standard of proof to be the balance of probability. Therefore it is perfectly reasonable for a judge in the High Court to distinguish between those two parts of the Bill. As the right hon. and learned Member for Sleaford and North Hykeham pointed out, the sliding scale is not a novel idea for the High Court. It uses it as a matter of course in civil proceedings. It is not new; it has not arisen as a result of McCann. McCann has tried to clarify the situation with respect to civil orders.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I understand the Minister to say that in the majority of cases where the consequences are serious he expects something like the criminal standard. He will say that that follows from the ordinary principles of law. But he must look at page 32 of the Green Paper. The Minister says that it his intent that prevails and I’ll accept that for these purposes. But the Green Paper was drafted by the lawyers, and they thought that one could get the balance of probability as the test, notwithstanding McCann. That is a serious problem which he has to face.

Vernon Coaker (Labour, Gedling)

That may have been in the Green Paper, but I am trying to make clear to the Committee what the Government expect, not as a result of what was in the Green Paper, but as a result of this Bill and the various comments that I and others have made here and my noble Friend Baroness Scotland made in the other place.

I should like to quote from the McCann judgment. Lord Steyn said:

“Having concluded that the relevant proceedings are civil,in principle it follows that the standard of proof ordinarily applicable in civil proceedings, namely the balance of probabilities, should apply. However, I agree that, given the seriousness of matters involved, at least some reference to the heightened civil standard would usually be necessary”.

Lord Hope said:

“But it is not an invariable rule that the lower standard of proof must be applied in civil proceedings.”—

Again, the point that the hon. Member for Reigate made—

“I think that there are good reasons, in the interests of fairness, for applying the higher standard when allegations are made of criminal or quasi-criminal conduct which, if proved, would have serious consequences for the person against whom they are made.”

Jeremy Wright (Conservative, Rugby and Kenilworth)

I am grateful to the Minister for giving way. I understand that he is attempting, as did his ministerial colleagues, to provide as much clarity as possible. But surely when people come to look at this legislation they will start with the Bill and then, perhaps, they will look at what he said in Committee. He said almost everything that the amendment sets out to achieve. I simply do not understand, and I am fairly sure that people outside the House will not understand, why he cannot just put what he has said, or some variation of it, into the Bill. There is confusion between what he relied on in clause 1(1)(a), which is to say that the High Court must be satisfied, and saying that the civil standard of proof must be applied. The simple way around this is to set out exactly what the Government wish the courts to do.

Vernon Coaker (Labour, Gedling)

I shall simply repeat what we have said ad nauseam. There is a difference of view. We do not think that it is necessary for that to be on the face of the Bill. I have laid out what the Government expect with respect to the standard of proof and serious crime prevention orders. Indeed, even the hon. and learned Member for Torridge and West Devon has accepted that High Court judges are used to dealing with the sliding scale with respect to the standard of proof in civil proceedings. That is what we would expect. The McCann judgment clarified that the more serious the offence, the higher the standard of proof that one would expect to be necessary for the court to be convinced of anything. With respect to clause (1)(1)(a) one would almost expect it to be virtually identical to the criminal standard.

Geoffrey Cox (Conservative, Torridge and West Devon)

I agree with almost all of what the Minister said, except that even the heightened civil standard is nowhere near the criminal standard of proof. The heightened civil standard simply asks, “Is it much more likely than not?” The criminal standard asks, “Is it certain?” The ordinary civil standard is, “Is it more likely than not?” Hon. Members can work out for themselves the differences between those tests, but that is the situation.

Vernon Coaker (Labour, Gedling)

The hon. and learned Gentleman makes his point and people will have to make up their mind where they stand on the issue. As I said, our view is that the standard of proof is a sliding scale, which is flexible, and which will be applied appropriately by the High Court.

To finish my remarks, the key question in determining whether a measure is civil or criminal is whether it is preventative or punitive. As Lord Hope made it clear in the McCann case, if a measure is preventative it is likely to be classified as a civil measure. The reason why the Government believe that the orders are civil measures goes to the heart of the Bill which, as my hon. Friends have said in our debates today, is about preventing serious crime, supporting victims and putting them first.

The hon. Members for Taunton and for Hornchurch talked about penalties. These measures are not penalties or punishment for past crimes; they are about preventing crime, and harm, in the future, and the vast majority of our constituents would want us to put in place measures that do that.

James Brokenshire (Conservative, Hornchurch)

It is clear that there is a divergence of view, and I am not going to prolong the debate any further to try and bridge the gap, because it is there. It is fine for the Minister to say, “This is about the prevention of crime,” but we need something that is clear, that will work, and which the courts will ensure is robust; that is what the amendment would ensure, and I am disappointed that the Minister has turned his face against it. The best way for the House to ensure that there is clarity for the courts in understanding how a Bill is intended to operate in practice is by the language on the face of the Bill and I am sorry that the Minister does not accept that logic. I will test the Committee’s appetite for the provision because it is so important, by dividing the Committee on the amendment.

Clause 35

Vernon Coaker (Labour, Gedling)

I beg to move amendment No. 50, in clause 35, page 23, line 9, leave out subsections (4) and (5) and insert—

‘(4) The Crown Court, when exercising its jurisdiction in England and Wales under this Part, is a criminal court for the purposes of Part 7 of the Courts Act 2003 (c. 39) (procedure rules and practice directions).’.

I apologise to the Committee for having to amend the Bill to clarify which rules committee should make procedure rules in relation to the operation of orders in the Crown court. After further consultation within Government, we have concluded that it would more administratively convenient for the procedure rules in relation to orders made in the Crown court to be made under the provisions of the Courts Act 2003, as that is where the rules in relation to other civil orders on conviction will be made.

James Brokenshire (Conservative, Hornchurch)

In the context of the previous debate, I rise to highlight the strange irony that the amendment should say that the Crown court is to be termed a criminal court for the purposes of clause 35, notwithstanding the fact that we are apparently talking about civil orders and a civil burden of proof. However, I note what the Minister said about the operation of the orders, even if there is some irony in the relation to the wording proposed.

Schedule 2

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I beg to move amendment No. 133, in schedule 2, page 54, line 28, leave out paragraph 2.

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss the following amendments: No. 134, in schedule 2, page 55, line 26, leave out paragraph 7.

No. 135, in schedule 2, page 56, line 17, leave out paragraph 13.

No. 136, in schedule 2, page 57, line 1, leave out paragraph 17.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Amendment No. 133 is not a minor amendment; it is, I hope, an important amendment. We have been over the nature of the orders many times—how wide ranging and draconian they are, the limited protection given to the citizen, the fact that they are renewable, and the rest of it. Some members of the Committee might have taken comfort from the fact that under clause 9 an application can be made by only a limited number of individuals—the Director of Public Prosecutions, the Director of Revenue and Customs Prosecutions, the director of the Serious Fraud Office and, in the case of Northern Ireland, the Director of Public Prosecutions for Northern Ireland. On the face of it, therefore, the central and important distinctions are being made at a very high level of administration.

That is the comfort that some members of the Committee might have taken from clause 9. However, I wonder whether they should have drawn such comfort, because in schedule 2, under paragraphs 2(1) and 2(2), paragraphs 7(1) and 7(2) and paragraph 17, the powers can in fact be delegated downwards to a relatively low level. So far as the powers of the Director of Public Prosecutions are concerned, paragraph 2(2) says: “References...to the Director” can be deemed to be

“references to...any Crown Prosecutor.”

Paragraph 7(2) says: “References...to the Director”—that is, the Director of Revenue and Customs Prosecutions—may be deemed to be

“references to...any Revenue and Customs Prosecutor.”

Similarly, paragraph 17, which refers to Northern Ireland, says: “References...to the Director” will be

“references to...any Public Prosecutor.”

The important point, which I have made already, is this. If we give powers to an official, we can be quite sure that those powers will from time to time be abused. When the powers are set a level at which the powers in question have been set, it is important that they should exercised at very high administrative level. I am very far from happy—indeed, I am extremely unhappy—that the powers to make applications that could lead to such draconian consequences should be entrusted to officials of fairly modest standing. That is not right.

That concern is reinforced by the fact that the Minister has told us on several occasions that we should expect only a limited number of applications to be made—he said that the regulatory assessment had suggested 30 orders a year. We are dealing with four jurisdictions—Northern Ireland, the Revenue, the DPP and the Serious Fraud Office. We are talking about only four, five or 10 applications per director, so why on earth can not it be confined to the director himself or herself, rather than being entrusted to a relatively junior official.

I hope that the Committee will reflect on those points and decide that applications of this kind, which are serious in their potential consequences, should be confined to senior officials, together with all the other consequential decisions that are referred to in, for example, paragraph 1 of schedule 2.

Vernon Coaker (Labour, Gedling)

Either the Director of Public Prosecutions, the Director of Revenue and Customs Prosecutions or the director of the Serious Fraud Office must make the specific decision to delegate. It will not happen automatically, as the right hon. and learned Gentleman implied. It will be a positive decision.

Schedule 2 sets out the functions of the applicant authorities in relation to part 1 of the Bill. The amendments all relate to the powers of the directors of the four applicant authorities to delegate the exercise of their functions in relation to serious crime prevention orders to members of their respective organisations. Those powers have been included because we want the Director of Public Prosecutions, the Director of Revenue and Customs Prosecutions and the director of the Serious Fraud Office to be required to make a decision to delegate to a member of their staff rather than the delegation happening automatically.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Clause 9 states:

“A serious crime prevention order may be made only on an application”,

but the effect of paragraphs 2(1) and (2) of schedule 2 is that the conduct of applications can be delegatedto a Crown Prosecutor. In other words, the Crown Prosecutor, in contrast with the director, has all the consequential decisions to make, as he has the conduct of the application.

Vernon Coaker (Labour, Gedling)

My point is that it would not be automatically delegated—

Douglas Hogg (Conservative, Sleaford and North Hykeham)

No, it is not automatic.

Vernon Coaker (Labour, Gedling)

But once delegated, those prosecutors would, to all intents and purposes, be the applicant authority. I accept that point. However, as well as being under the control of their own directors, the right hon. and learned Gentleman will have noted that paragraph 3 of schedule 2 states:

“The functions of the Director under this Part are exercisable under the superintendence of the Attorney General.”

It is not only that the director of the specific prosecution agency will ensure that things are done properly; the Attorney-General also has a responsibility.

If the amendments were made, the directors would need to fall back on their existing powers of delegation. In some cases a director might be left without any power of delegation and in others delegation would happen automatically. It would be impractical to ask the directors of each of the three organisations to carry out those functions personally, even for the relatively small number of orders that we anticipate. Instead, those functions will be carried out by specifically and specially trained members of their respective organisations, all under the superintendence of the Attorney-General, as also specified in the schedule.

Crispin Blunt (Conservative, Reigate)

We had a discussion about the application of the orders to prisoners who come out of prison having been sentenced for a serious crime. Instead of there being 30 cases a year as under the impact assessment, there could be 30,000. I imagine that that is the sort of number of people leaving prison after being convicted of serious crimes every year, so it would become an automatic part of the process when the powers are delegated. Can the Minister say anything to comfort me that the powers will be delegated only in a way that will not lead to an automatic post-imprisonment process, and that a suitable order is applied to everyone who leaves prison having been convicted of a serious crime?

Vernon Coaker (Labour, Gedling)

Obviously, only an appropriate order would be allowed by the court. That would be part of the process. We came to the number 30 as a result of an assessment of the number of orders that we thought would be made in any one year. That was in the regulatory impact assessment, and it is our best assessment of the number of orders. We do not in any way expect there to be 30,000; the orders will deal with very serious criminals and very serious crime.

The hon. Gentleman almost seemed to suggest that a director might go willy-nilly for a serious crime prevention order. I hope that he will find the comfort that he seeks in the fact that that simply could not happen. A director doing that would be not only subject to the normal processes within their own agency, but under the superintendence of the Attorney-General—who would be the governor, if you like, of the prosecuting agencies. Before the issue got to court, the Attorney-General would see that going willy-nilly for such an order was not appropriate and reasonable. If someone seeking an inappropriate serious crime prevention order got it to court, the court would simply not allow it to be made.

Dan Rogerson (Liberal Democrat, North Cornwall)

The Minister has painted a picture of the powers being included in the Bill for operational reasons—in other words, they would give various organisations the capacity to function and the director would not have to have direct responsibility, although they would ultimately take the decision.

However, I envisage a case in which the decision that such an order might be desirable to the agency in question came from below—came to the director, who then signed it back down to someone below. In other words, we are increasing the capacity for the number of orders to multiply, much as the hon. Member for Reigate suggested.

Vernon Coaker (Labour, Gedling)

To clarify the position for the hon. Member for Reigate, I should say that we estimated that there would be approximately 30 cases. That estimate of need came from the various branches of law enforcement. We believe that it is appropriate for the director of the prosecuting agency to be able to delegate to a specific, specially trained member of staff. However, such a staff member will not simply be able to decide to apply for the order, just because the issue has been delegated down. The decision would have to be proportionate and reasonable—otherwise, the court would simply not allow it.

The position of the Director of Public Prosecutions for Northern Ireland is slightly different. The Bill does not give him a power of delegation; his powers to delegate under section 36(1) of the Justice (Northern Ireland) Act 2002 will be relied on. Paragraph 17 to schedule 2 of the Bill makes the position clear. I hope that, for the reasons that I have outlined, the hon. Gentleman will withdraw his amendment.

Jeremy Browne (Liberal Democrat, Taunton)

This is the first time I have spoken this afternoon, so I welcome you to the Chair, Mr. Benton. If the right hon. and learned Member for Sleaford and North Hykeham is minded to press the amendment to a Division, we shall support him for the following reasons. There is confusion in the Government about how many people will be affected annually by the orders. The figure 30 keeps being presented. One could say that a point of principle is involved, that the numbers are neither here nor there and that one is either in favour of the principle or not.

However, the public will perceive that the number of people affected each year is significant. The Minister seeks to reassure us that the orders are reserved for the tiny number of real Mr. Bigs, the real problem people; 30 is the figure that he keeps citing. However, when Government Back Benchers make interventions, they always say, “This Bill will go down extremely well in my constituency because of all the people committing antisocial acts on various housing estates.” They say how much they will appreciate the Bill. However, there are 646 Members of Parliament, I think. On the basis of 30 a year, a person will be affected in each constituency only about every two decades. The effect on those hon. Members’ constituencies will not be as profound as they seem to think.

Chris Ruane (Vale of Clwyd) (Lab) rose—

Jeremy Browne (Liberal Democrat, Taunton)

If an 18-year-old is causing trouble, in, for example, the constituency of the hon. Gentleman to whom I will give way in a moment, if the Government go through 30 cases a year, that 18-year-old will be knocking on 40 by the time a serious crime prevention order is put in place.

Chris Ruane (Labour, Vale of Clwyd)

Is the hon. Gentleman aware that the 30 super-criminals of whom we are talking spread their power, or tentacles, over many constituencies and across whole cities, communities and regions? It isnot just one bad person, or super-gangster per constituency. The reach of such people is far and wide, and often they reach into our communities—the poorer communities—and Labour constituencies, which is why Labour Members are concerned.

Jeremy Browne (Liberal Democrat, Taunton)

I am grateful to the hon. Gentleman for making that point, but if we are talking about such a small number of people, he will have no difficulty in supporting the amendments. There is no need to delegate the power to make a decision that is as infrequent as this one will be—roughly 30 people a year. The concern is that if we do not pass the amendments, there will be a machine somewhere within Government signing the orders through on a regular basis.

The hon. Member for Reigate made a point about people who are released from prison having orders imposed upon them as a matter of routine. We are told that 30,000 is an excessive number and it will not be of that order, but that 30 is a reasonable estimate. However, this is the same Government who made an estimate about the number of Polish people coming to work in the United Kingdom.

Vernon Coaker (Labour, Gedling)

I will ignore the last remark. I say to the hon. Gentleman that this is an extremely important point, about which I do not want there to be any misconception. The Government do not sign through serious crime prevention orders; it is the courts that do so. Whatever else we have said in Committee and whatever disagreements there have been, the courts will make the decision about whether a serious crime prevention order should be made or not.

Jeremy Browne (Liberal Democrat, Taunton)

I am grateful for that intervention. Of course the courts will make the decision, but the application is made by an agency of the Government and this is a Government Bill.

In conclusion, if Members think that 30 is a realistic assessment of the numbers of people who will be affected annually, it is perfectly reasonable that the decision is taken at a higher level and that these amendments are supported on a cross-party basis. If they are not, one must make the reasonable assumption that the 30 figure will not apply in practice, if and when the Bill becomes law.

James Brokenshire (Conservative, Hornchurch)

This interesting debate has highlighted concern about the application of the orders and the way in which they will be sought and operated. Conservative Members accept that there must be an element of delegation by the authorities to makethe system work appropriately, but that does not undermine the importance of the concern that if the orders are as serious as the Minister has suggested and if they are only intended to be used in a limited set of circumstances, we must ensure that there are clear lines of communication and that clear steps would be taken to ensure that control was exercised and decisions were made at an appropriate level. Doing so would denote the seriousness of the orders that we are talking about.

Geoffrey Cox (Conservative, Torridge and West Devon)

Does my hon. Friend accept that there is nothing in the Bill that mentions super-criminals, there is nothing in the Bill that says there will be only 30 applications and there is nothing in the Bill that would necessarily or logically imply that the orders will be applicable to only 30 people? [Interruption.] The Minister smiles, but I have seen this happen before. Legislation is passed, teams are set up in all the prosecuting departments and it becomes self-generating. It will be—

Joe Benton (Labour, Bootle)

Order. I remind the Committee that the Minister has already replied to the debate. The proper sequence should have been for the hon. Member who spoke before to speak before that, but the timing was not quite right. I do not want to repeat things, but the Minister has already replied. It would be helpful if we could move along and the mover of the amendment could indicate whether he will withdraw it.

The rest of the debate is in Hansard.