Debates — Serious Crime Act 2007

Report stage, 3rd reading in the Commons

22 Oct 200792 speechesView in Hansard ↗

The Parliamentary Under-Secretary of State for the Home Department (Mr. Vernon Coaker)I beg to move, That the clause be read a Second time.
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The Parliamentary Under-Secretary of State for the Home Department (Mr. Vernon Coaker)Labour
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I beg to move, That the clause be read a Second time.
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Mr. CoakerIn his report, “Regulatory Justice: Making Sanctions Effective”, Professor McCrory advocated that “regulatory sanctions…
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Mr. CoakerLabour
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In his report, “Regulatory Justice: Making Sanctions Effective”, Professor McCrory advocated that “regulatory sanctions were consistent with, and appropriate for, a risk based approach to regulation, as set out in recommendation eight of the Hampton Review. The Hampton Review recommended that the penalty regime should be based on the risk of re-offending and the impact of the offence…with tougher penalties for rogue businesses that persistently break the rules.” There is a significant read-across between the approach that he advocates and the innovative and targeted approach to involvement in serious crime that we are proposing in the amendments. We have already discussed the fact that businesses are increasingly used by serious criminals as the means by which they, for example, launder money or attempt to disguise activities such as people-trafficking or drug-trafficking. Businesses can be in more than one place at a time, they can have complicated legal structures and they can carry out exceedingly complex business and large amounts of transactions on a daily basis. All those things make them very difficult to interdict for their involvement or use in serious criminal enterprises. The Serious Organised Crime Agency, the Serious Fraud Office, Her Majesty’s Revenue and Customs and the rest of the law enforcement community are constantly developing and using innovative approaches to dealing with this problem. They are having significant successes and should be commended. However, the inexhaustible potential for using businesses in different ways to further serious criminal ends means that that work is not always enough. The amendments will mean that, for example, where a business has been proved to be involved in serious crime, an order can require it to provide its accounts or other information to an authorised monitor, to ensure that it complies with a requirement not to conduct its business in a particular way. That will be effective where the information is particularly complex and where someone such as a forensic accountant will be able to make a far better assessment than a law enforcement agency of the way in which the business is conducting itself. If the court authorises a law enforcement agency to employ a monitor, it can go on to provide, as a term of the order, that the organisation that is the subject of the order must pay the costs that the law enforcement agency incurs in employing the authorised monitor. That effectively increases the regulatory burden on a business because it has been proved to be involved in serious crime. The provisions target regulation in a risk-based manner, and mean that burdensome regulatory approaches do not have to be taken to deal with the few bad apples in any business area. Regulation does impose a cost on business, but we can all agree that this is better than the results of no regulation at all.
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James Brokenshire (Hornchurch) (Con)The Minister has talked about the application of the orders and the way in which they would need to be monitored, and I…
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James Brokenshire (Hornchurch) (Con)Conservative
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The Minister has talked about the application of the orders and the way in which they would need to be monitored, and I understand his point about the complexity of corporate structures and how businesses might be used. Will he explain, however, whether the orders will require the recipient to have knowledge that they have committed or been involved in a serious crime? There could be a risk that someone unknowingly involved in such a crime could be the subject of an order and have to pay the cost of the monitoring.
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Mr. CoakerWe went through that debate at great length in Committee. The applicant authority would have had to go to court over an…
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Mr. CoakerLabour
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We went through that debate at great length in Committee. The applicant authority would have had to go to court over any organisation that was the subject of a serious crime prevention order. Only in circumstances where someone had either encouraged or facilitated a crime would they be made the subject of a serious crime prevention order. The hon. Gentleman’s point would have been considered by the court before deciding whether to apply the order. There is the potential, in appropriate circumstances, for there to be a burden on the business concerned, but that is to be preferred to the potential cost of having to regulate an entire sector.
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James BrokenshireThe Minister talks about the assessment of the costs of the order and of the monitoring. How is it likely to be present…
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James BrokenshireConservative
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The Minister talks about the assessment of the costs of the order and of the monitoring. How is it likely to be presented to the court and what scope would there be for any re-assessment of such costs, which, at the outset, may not be readily calculable when the court is considering the matter?
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Mr. CoakerAs the hon. Gentleman will know, the practical arrangements for deciding how costs are to be arrived at will be done th…
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Mr. CoakerLabour
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As the hon. Gentleman will know, the practical arrangements for deciding how costs are to be arrived at will be done through order. It is one important aspect of the order making power, so as it goes through, we need to consider the practical consequences, how costs will be apportioned and what amounts are appropriate. The important point in respect of the primary legislation, however, is the existence of safeguards for any business, organisation or partnership—and they are set out in the provisions. As I have explained, we want to ensure that businesses made subject to a serious crime prevention order by the courts abide by the terms of that order. By the use of a forensic accountant or other suitable professional, we want to ensure that businesses comply, but we do not want to do so in a disproportionate way—hence the safeguards that I have outlined. I rather think that the hon. Gentleman knew the answer to his question before he asked it: costs will be subject to the order making process. The new clause strikes an appropriate balance between the need to ensure that businesses are not used by serious criminals and the need to ensure that the business sector as a whole is not damaged by measures designed to combat the few. I thus commend the new clause to the House.
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James BrokenshireThe first thing to note about new clause 1 and the accompanying new clause 2 is that they are obviously very late in co…
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James BrokenshireConservative
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The first thing to note about new clause 1 and the accompanying new clause 2 is that they are obviously very late in consideration. Given what the Minister has said about their importance and necessity, it is surprising that we are considering these proposals on Report—after the entirety of the Bill has already been examined. I acknowledge what the Minister has said about the complexity of what is involved. I accept that in serious and organised crime, criminals will go to great lengths to ensure that their true purpose is disguised and that different corporate structures may be used to try to hide criminal activity. On the face of it, whatever the merits of serious crime prevention orders—we will come on to debate them later—if they are to apply and be effective, there is clearly a need for monitoring to ensure that their terms are adhered to. Without proper monitoring the orders will be ineffective, because it will not be known whether they have been breached and whether the appropriate sanctions should apply. I realise that the position is complex and that on the face of it there is a need for experts to be involved, but the new clause leaves a good deal of room for improvement. I want to raise a few points on which I have sought elucidation from the Minister. The key point is that, while a person or corporate body subject to a serious crime prevention order would need to appear before a court, that person or body would not necessarily have committed a serious offence, but would only have had to be involved in a serious crime. We shall discuss that more fully during our wider debate on the orders themselves. It might be said that involvement in a serious crime indicated a direct link and was therefore extremely important, but the wording of the Bill suggests that the link may be somewhat more indirect. Clause 2(1)(b) and (c) make it clear that such involvement could include a person’s facilitating the commission of a serious offence, or conducting himself “in a way that was likely to facilitate the commission” of a serious offence. There is no requirement for intention in those circumstances. Indeed, clause 4(2) imposes what is almost a reverse burden of proof on the person who is potentially subject to an order, who must show that his actions were “reasonable in the circumstances”. The Minister said that only about 30 orders a year would be issued, and that has been stated consistently and clearly throughout the review of the draft legislation. What is not clear is whether this measure is really about the Mr. Bigs or whether it is likely to be used far more widely than the Minister intends, purely because of the way in which it is drafted. That is worrying in this context and a number of others. Notwithstanding possible assurances that the measure is supposed to be limited and to attack only the very central figures, it could be interpreted as allowing peripheral figures who, despite having no direct intention and no direct knowledge that they have facilitated or been engaged in facilitating serious crime, may find themselves subject to a serious crime prevention order—and, subsequently, to another order requiring them to pay for the monitoring of their compliance with it. That potential injustice leaves me extremely uncomfortable with the ambit of the new clause, despite the Minister’s statement that it is intended to focus only on a very small group of corporates, and to ensure that forensic accountants and experts are brought in to aid the monitoring, enforcement and interpretation of the orders. That second aspect—cost—strikes me as extremely important. I have already described the legislation as wide ranging and potentially draconian. New clause 1(4) states “A serious crime prevention order which provides for an authorised monitor may require any body corporate, partnership or unincorporated association which is the subject of the order to pay to the law enforcement agency concerned some or all of the costs incurred by the agency under the arrangements with the authorised monitor.” It goes on to state that payments on account may also be required, which effectively means that payment must be made in advance of the monitoring. As we have heard from the Minister, it is unclear how those costs will be assessed; in essence, they will be drawn in through secondary legislation. It is also unclear how the court will determine those costs and, therefore, the impact on the business concerned. He has tried to point out the protections in new clause 1(7), which is intended to give the courts a particular role in assessing the relevant circumstances, examining “(a) the means of the body corporate… (b) the expected size of the costs”. The provision also deals with the effect that the order and the monitoring would have on that body corporate. We do not know what those costs will be, how they will be assessed and how they will be measured. The court will be put in a difficult position in assessing the impact of the order on the body—the company or business—because it will have to undertake a detailed examination and review of the finances, the business and the way in which the company operates to assess whether the order would have a particular effect and whether it would risk the bankruptcy, liquidation or winding up of the company. That will be a hard decision for the court to make, particularly given that it will have to make an assessment of costs that may subsequently change. I am sure that the Minister will say that the Government will set out in the order what the compliance should be, what the terms of the order are and therefore why there is a need for monitoring, but difficulties are involved. Given my professional background, I know that sometimes the costs that one is given in advance may not end up being the costs that arise. The monitor—this expert—will have to make a judgment about what is involved and what its own professional costs are likely to be in seeking the order in the first place. The court will be in a difficult position. How will it go about assessing the costs and the impact when it may have limited information on that body corporate? It will clearly not have a full understanding of how that company conducts its business, the pressures on it and the market conditions. This provision could have a significant adverse impact on businesses if a wrong judgment is made, with the best of intentions, based on information that is not complete at the time that a monitoring condition is applied. We could risk creating injustice, particularly if an order was granted against a company whose involvement was peripheral, not intended, not direct and almost without knowledge, even though the court may have been able to show that it should have taken some other action and that is why it is brought within the scope of the serious crime prevention order in the first place. New clause 1(6) deals with the tests for making serious crime prevention orders. The Minister will be familiar with our debates on Second Reading and in Committee about harm reduction versus punishment. He has said on many occasions, as I am sure he will say this afternoon and this evening, that the Bill is only about harm reduction—it is about preventing serious crime—and that it is not about punishment. One can form one’s own judgment about whether that is the reality in the Bill, but subsection (6) raises interesting questions that deserve greater scrutiny.
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Mr. Jeremy Browne (Taunton) (LD)Does the hon. Gentleman see a distinction, as I do, between using these powers to restrict the freedoms of people whose…
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Mr. Jeremy Browne (Taunton) (LD)Liberal Democrat
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Does the hon. Gentleman see a distinction, as I do, between using these powers to restrict the freedoms of people whose prison sentence has been spent but who have been convicted of an offence, and using them in a preventive capacity in respect of people who may never have been convicted of any offence?
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James BrokenshireWell, there is an issue in the way in which civil orders can be used for crime prevention. The hon. Gentleman is right…
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James BrokenshireConservative
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Well, there is an issue in the way in which civil orders can be used for crime prevention. The hon. Gentleman is right to highlight the fact that the orders can be used in two separate ways. One is almost as a post-bail or a post-conviction prevention order, in which the intention is almost to get someone back behind bars as soon as possible by virtue of a breach. That is a criticism that has been levelled at some of the other civil orders that the Government have introduced. The other is use of the order before any criminal conviction has been obtained, and that raises issues of appropriateness, especially when the criminal law could be applied and some sort of criminal sanction invoked. That is a point that we will debate in greater detail when we reach serious crime prevention orders later. New clause 1(6) states: “The tests for making or varying a serious crime prevention order”— it then lists various sections— “do not operate in relation to an order so far as the order contains terms of the kind envisaged by subsections (4) and (5) above.” In other words, monitoring should occur. The particular parts of the Bill that are being carved out by that provision are those to do with preventive measures. For example, I draw the Minister’s attention to clause 1(1)(b), which provides that the 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.” In other words, that limb—the necessity for the court to be satisfied that the order would prevent crime—would be carved out by new clause 1(6). That is a bit odd, if the intention is to prevent, rather than to punish. That is an important point for how the orders are used and, in terms of the European convention on human rights, to ensure that the Bill is not construed as providing for punishment. It is essential that the orders should be preventive, not punishment, but new clause 1(6) would take out all the relevant provisions on orders that will have a monitor granted to them. That is perverse and bizarre and, when the Minister winds up, I trust that he will give some explanation of it. The way in which the provision is drafted suggests that it may also apply to the whole of the serious crime prevention order, rather than just to the monitoring aspects. That would make the orders very wide and draconian in their application in the particular aspects. The late inclusion of this wide-ranging new clause raises many questions, and it has not had proper scrutiny and debate.
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Mr. CoakerThe hon. Gentleman made a reasonable point about the application of new clause 1(6), but then made the wild assertion t…
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Mr. CoakerLabour
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The hon. Gentleman made a reasonable point about the application of new clause 1(6), but then made the wild assertion that it would apply to serious crime prevention orders as a whole. If he reads further, he will see that it is limited to the new clause, and does not apply to the whole Bill.
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James BrokenshireI am grateful to the Minister if that is what is intended, but new clause 1(6) states that it does not operate “in rela…
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James BrokenshireConservative
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I am grateful to the Minister if that is what is intended, but new clause 1(6) states that it does not operate “in relation to an order”. While it may continue “so far as the order contains terms of the kind envisaged by subsections (4) and (5) above”, it does imply that it could apply to orders more generally. However, I welcome the Minister’s intervention to make it clear that the provision is intended to deal only with the monitoring aspects, not the aspects of wider concern. Even so, in terms of monitoring, surely the orders should be intended to prevent crime. Otherwise, why are they there? He has said that the provision is not intended more generally, but it is still questionable whether the removal of the sections in question will cause problems with compliance with the European convention on human rights. Perhaps he can reflect on that point in further detail when he winds up. The Minister said that the costs will be dealt with in secondary legislation, so we do not yet know how they will be assessed. How will appeals against the costs work? New clause 2 states that costs could be subject to appeal, and that “Such provision may, in particular, include provision about appeals.” Can the Minister shed any more light on the Government’s intentions relating to appeals against costs? The costs could be significant and the regulations could have a damaging impact on businesses. The proposals note that the steps an enforcement agency can take to recover costs will also be covered by secondary legislation, but again the Minister has not talked in great detail about the Government’s intentions in that regard. Will the relevant enforcement agencies have the right to bankrupt and wind up a company that is unable to pay for monitoring costs—however damaging their impact might be? The Government have decided to introduce these provisions hurriedly at a late stage, and there is a lack of detail in terms of costs, how the courts will assess companies, whether appeals against the costs will be allowed and how they will operate, what the time scales will be and what the rights of challenge will be. Once the costs are in place, what rights will enforcement agencies have and how will they operate in practice? What discretion will the agencies have in recovering the costs? I accept that if costs are levied it is right, on the face of it, that the company should pick them up, but there is a duty on law enforcement to deal with its monitoring. The proposals could place a significant burden on companies and the House is not yet clear about the context for the provisions or their scale and nature. Based on the information we have been given, I remain concerned about the risk of injustice due to the lack of clarity and certainty in new clauses 1 and 2.
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Mr. Jeremy BrowneI am grateful for the opportunity to speak briefly on new clause 1. I echo the concerns that have just been expressed a…
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Mr. Jeremy BrowneLiberal Democrat
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I am grateful for the opportunity to speak briefly on new clause 1. I echo the concerns that have just been expressed about the introduction of such wide-ranging and important provisions at this stage of our deliberations. We had opportunities for exhaustive discussion of the Bill in Committee, when we went through it in great detail, so it is alarming that new provisions are being introduced in this way. Three aspects of the new clause give me cause for concern, and I shall be interested in the Minister’s response. The first is that the provision is extremely wide-ranging. It shines a light on a larger concern about the Bill as a whole, which is that there are conflicting stories about the number of people who will be caught up by the provisions. In Committee and in his speech today, the Minister was keen to stress that the provisions will apply to only a small number of people. Those assurances are not in writing in the Bill, but the background mood music is that we need not be overly concerned that the provisions will be routinely applied, as they will catch only a small number of particularly burdensome criminals. None the less, representations to me from agencies and others who are broadly supportive of the measure make much more extravagant claims about its impact on my constituents. If 30 or 40 people a year are caught up by the provisions, it is unlikely that any of them will be my constituents. Of course, there will be a knock-on effect in terms of the impact that is caused, but it would be interesting to know how many people are likely to be caught by these provisions. Although there is a point of principle, a matter of degree also applies, and so far, that is not at all clear. The second point that gives cause for concern is that the specific people are not defined in the Bill. Therefore, it is difficult to understand how, when such services are contracted out to various outside agencies, checks and balances will be in place to ensure that the powers are wielded responsibly and in a way that would satisfy an elected representative, such as myself. The third issue that gives me cause for concern—I would be interested to hear the Minister’s response—was raised by the hon. Member for Hornchurch (James Brokenshire) and relates to the obligation on the subject of the order to pay the costs. That could be a very serious sanction against someone who has not necessarily committed a criminal offence. I would be interested to know whether the Minister felt that there could be a cap on those costs. I ask him for more detail on how he thinks that will work in practice.
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Mr. CoakerI am grateful to the hon. Member for Hornchurch (James Brokenshire) for recognising the complexity of the Bill and for,…
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Mr. CoakerLabour
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I am grateful to the hon. Member for Hornchurch (James Brokenshire) for recognising the complexity of the Bill and for, quite frankly, the decent way in which he admitted that fact. Some of these provisions are very technical, complex and difficult. That is why some of these amendments are being debated on the Floor of the House. I make no apology, however, for introducing something that will significantly improve the Bill. It would be somewhat ridiculous if, because I might be embarrassed about the fact that the hon. Gentleman would complain about such late additions to the Bill, I did not introduce amendments that improve it and make a significant difference to it. All I can say to the hon. Gentleman is that I apologise for the late introduction of new clause 1 and to the House for the lateness of some of the amendments, but I do not apologise for the fact that provisions, such as new clause 1, will make a significant difference and are significant improvements to the Bill, and it is therefore important that we debate them today.
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James BrokenshireThe Minister says that he believes that new clause 1 will make a significant difference. He has also said that, in esse…
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James BrokenshireConservative
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The Minister says that he believes that new clause 1 will make a significant difference. He has also said that, in essence, about 30 such orders will be granted a year. How many orders does he think will be granted subject to the monitoring requirements set out in these new clauses?
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Mr. CoakerI do not know the answer to that, but the serious crime prevention order as laid out in the Bill should be available to…
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Mr. CoakerLabour
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I do not know the answer to that, but the serious crime prevention order as laid out in the Bill should be available to the courts. That will be a matter for the courts, and it will be for the applicant authorities to go to the courts where they think it appropriate and where they think that a serious crime prevention order will seriously impact on crime. With respect to new clause 1, the inclusion of authorised monitors is important because it will make the serious crime prevention orders more effective, as they apply to businesses and organisations. Let me suggest to the hon. Gentleman and to the hon. Member for Taunton (Mr. Browne) that I would have thought that all of us are united in wanting to ensure that serious crime prevention orders imposed on businesses and organisations are enforced and made to work, so that we can all see that they have credibility, and the use of authorised monitors will ensure that the terms are agreed to and, importantly, complied with.
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James BrokenshireThe Minister highlighted the point about the assessment of the court, but that is really a question of the information…
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James BrokenshireConservative
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The Minister highlighted the point about the assessment of the court, but that is really a question of the information presented to the court. It may not be presented with a full picture. He chided me for criticising him for the late notice of the new clauses, and our late consideration of them. What discussions has he had with the Law Society, or similar third parties that are acutely involved in considering the provisions, given that the provisions are complex, and will sit on top of an already complex situation? The complexity of the new provisions causes me concern because of the potential injustices that may arise as a result of it.
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Mr. CoakerI apologise if I chided the hon. Gentleman too harshly; I did not mean to. He will know that we are taking forward the…
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Mr. CoakerLabour
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I apologise if I chided the hon. Gentleman too harshly; I did not mean to. He will know that we are taking forward the amendments as a result of the Hampton review and the Macrory report. They pointed out the need for appropriate and proportionate regulation, and that is what we have ensured. The hon. Gentleman talked about new clause 1(6), which switches off the test in clause 1(1)(b), and asked what the justification was for that measure. It is difficult to show that authorised monitors would directly prevent serious crime, but it is important to ensure that the parts of the order that would directly prevent serious crime are complied with. That is why we included the authorised monitors in the provisions. The hon. Gentleman asked whether the Bill complies with the European convention on human rights. He will have seen my statement on the subject but, again, I refer him to the protections in the new clause, which ensures that a court cannot appoint an authorised monitor to supervise a serious crime prevention order without taking into account certain circumstances, particularly those in proposed new subsection (7)(c), which refers to “the effect of the terms on the ability of any body corporate, partnership or unincorporated association which is carrying on business to continue to do so.” In other words, if a serious crime prevention order is served on an organisation, and if an authorised monitor is used to ensure compliance with the order, the court must ensure through proposed new subsections 7(a), (b) and (c), that the measure is proportionate and takes into account the ability of the organisation or partnership to comply with it. With those comments, I urge the House to support the new clause. Question put, That the clause be read a second time:— The House proceeded to a Division.
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Mr. CoakerI beg to move, That the clause be read a Second time.
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Mr. CoakerLabour
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I beg to move, That the clause be read a Second time.
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Mr. CoakerI shall begin with new clause 3. Under the civil recovery provisions of the Proceeds of Crime Act 2002—POCA—it is not p…
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Mr. CoakerLabour
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I shall begin with new clause 3. Under the civil recovery provisions of the Proceeds of Crime Act 2002—POCA—it is not possible at an interim stage for there to be a receiver whose only function is to manage property while it is frozen. That is a problem because there are civil recovery cases in which a property freezing order, which only freezes property, is not enough, as the property cannot be managed. On the other hand, obtaining an interim receiving order, which freezes assets and requires the appointment of an independent receiver, would be too much and is unnecessary in some cases. That is because the independent receiver, known as an interim receiver, has management, investigation and reporting functions. Due to the investigative function, it is only right that the interim receiver should be independent from either party to the civil recovery proceedings, so that accusations of any bias in the case can be avoided. There is an identified operational need to create a new type of receiver whose only role is to manage property. Such a receiver would not have any investigatory or reporting functions; he or she could be a member of the staff of an enforcement authority, such as the Serious Organised Crime Agency. In the Government's view, the creation of a civil recovery management receiver will improve the efficiency and effectiveness of the civil recovery regime in the 2002 Act. It will result in significant savings as the primary expense in civil recovery cases is meeting the remuneration and expenses of an interim receiver. In particular, in-house management receivers would be much more cost-effective. The Assets Recovery Agency has a number of cases where the sums spent on the interim receivership already exceed the value of the assets it is pursuing. Such experience has inevitable consequences in terms of whether an enforcement authority would adopt a difficult case, which is likely to be protracted and therefore expensive, or opt for a lower value and less complex case. We want to minimise such a resource consideration in the decision-making exercise of an enforcement authority on whether it should adopt a case for civil recovery. Other minor amendments are consequential on new clause 3. The other amendments in this group, which are also designed to support amendments that the Bill already makes to the Proceeds of Crime Act 2002, relate to the disclosure of information and the delegation of the functions of the directors of the main prosecution agencies. Amendments Nos. 27 to 32, 35, 37 to 40, 49, 50 and 52 relate to the disclosure of information between the various agencies involved in the civil recovery of the proceeds of crime.
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Stewart Hosie (Dundee, East) (SNP)Very little in the Bill relates directly to Scotland, but some of the amendments do. Although this is a slightly ineleg…
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Stewart Hosie (Dundee, East) (SNP)Scottish National Party
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Very little in the Bill relates directly to Scotland, but some of the amendments do. Although this is a slightly inelegant way of doing it, with gateway provisions for disclosure over two Acts, can the Minister confirm that the amendments change how SOCA’s POCA-related activities work to allow disclosure to the Lord Advocate and Scottish Ministers? In particular, have changes been made to ensure proper disclosure of criminal confiscation, civil recovery and taxation information? Finally, are the regulations concerning disclosure of information by the Lord Advocate and Scottish Ministers unchanged?
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Mr. CoakerThat was an excellent question by the hon. Gentleman, but I shall have to give it some thought before I answer him. In…
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Mr. CoakerLabour
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That was an excellent question by the hon. Gentleman, but I shall have to give it some thought before I answer him. In all seriousness, I think that I had better take some advice before I tell him something that is inaccurate and misleading. With the exception of its training and accreditation functions, the Assets Recovery Agency is to be merged into the Serious Organised Crime Agency under clause 72. The Assets Recovery Agency is currently the one body in England, Wales and Northern Ireland that undertakes civil recovery investigations and proceedings to recover the proceeds of crime. This civil recovery role will now transfer effectively to SOCA, the Crown Prosecution Service, the Revenue and Customs Prosecution Office, the Serious Fraud Office and the Public Prosecution Service for Northern Ireland. In order to support these and other functions carried out under the 2002 Act by the director of the Assets Recovery Agency, there is provision in part 10 of the Act for the disclosure of information to and by the director. The main group of amendments makes similar provision to part 10 to allow for the new bodies to be able to receive and disclose information to assist them in these, and other, functions. Amendments are either made to the parent legislation of the prosecution bodies where they already have what are known as information gateway provisions, or they create a new set of provisions for those organisations that do not have such legislative gateways. The flow of information is vital to ensure the success of the civil recovery regime in taking away the proceeds of crime. The usual safeguards and established practices and procedures are followed in the provisions to prevent any actual misuse of information or accusation of misuse. Amendments Nos. 25, 26 and 36 provide for a more effective and broad ability for the directors of the main prosecution agencies to be able to delegate their functions. The Bill confers the functions of civil recovery investigations and proceedings on to the directors. The operational reality will be that the respective directors will either delegate to their staff or contract out these functions. The amendments ensure a suitable level of flexibility in that process. Amendments Nos. 14, 24, 33, 34, 41, 48, 51 and 53 are minor consequential amendments reflecting the abolition of the Assets Recovery Agency. For example, the reference to that agency is to be omitted from schedule 1 to the Corporate Manslaughter and Corporate Homicide Act 2007.
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Chris Ruane (Vale of Clwyd) (Lab)In my constituency, there is a premises on West parade, on the front of Rhyl promenade, which was the property of a dru…
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Chris Ruane (Vale of Clwyd) (Lab)Labour
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In my constituency, there is a premises on West parade, on the front of Rhyl promenade, which was the property of a drug baron who was sent away for many years for importing £55 million of cocaine. That property has remained empty for six or seven years, and it has not been confiscated. Will the measures that the Minister is outlining today help to speed up that process, and will he prioritise that specific property?
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Mr. CoakerThere are two ways in which we hope to take the matter forward. It is important to recognise that the courts should be…
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Mr. CoakerLabour
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There are two ways in which we hope to take the matter forward. It is important to recognise that the courts should be encouraged, where someone has been criminally prosecuted for an offence, to place an confiscation order on them when that person is found guilty. We also hope that the civil recovery powers available can be used in exactly the sort of circumstances that my hon. Friend has laid out. Throughout the Bill, we want to ensure that those who profit from crime lose the profits they have made, whether they are the so-called Mr. Bigs or the people to whom my hon. Friend has referred, who cause havoc and mayhem in many of our communities. With that I commend the new clause to the House, with the added reassurance to the hon. Member for Dundee, East (Stewart Hosie) that I will return in due course to the points he made.
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James BrokenshireThe new clause effectively provides additional provisions relating to freezing orders, which come under section 245A an…
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James BrokenshireConservative
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The new clause effectively provides additional provisions relating to freezing orders, which come under section 245A and the subsequent sections contained within the Proceeds of Crime Act 2002. Those additional orders were introduced under the Serious Organised Crime and Police Act 2005, and apply only in certain circumstances where proceedings are under way to recover the proceeds of unlawful conduct. The freezing orders need to describe the property concerned and prohibit any person to whom that order applies from dealing with the property. As we said when the freezing order was introduced, it plays an important part in ensuring that we bear down on organised criminals who may be intent on misusing proceeds of crime, and in ensuring that such proceeds are recovered. We have stated on record that the orders are a good thing, so the gap that the Minister has highlighted is relevant. In the Minister’s letter to me, and the hon. Member for Taunton (Mr. Browne), he states: “The amendments I have tabled to the Proceeds of Crime provisions in Part 3 of the Bill will create a Civil Recovery Management Receiver. Creating these receivers will fill a legislative gap as it is not currently possible to have a receiver whose only function in civil recovery proceedings is to manage property while it is frozen. Civil Recovery Management Receivers will provide this function.” There is clearly a gap, and it is interesting that it has taken a little while for it to become apparent and for us to be made aware of it through the consideration of the provisions in the new clause. The proposal seems sensible because one of the concerns that arises in relation to frozen assets—the Minister alluded to this point—is that, when ensuring full proceeds are received, it may be necessary to manage assets while they are frozen to ensure that they do not diminish in value, and that the funds obtainable are as full as they should be. I recognise the intent behind the provision and the gap to which the Minister refers in his letter. It needs filling to ensure that we get the full proceeds required, and that there is no diminution in the value of the assets subject to the freezing order. We understand the context of the new clause and the point that the Minister makes. We hope that it will act to ensure that the proceeds of crime are realised in a more effective way, that the value of those assets is maximised through the procedures and process undertaken, and that the issue is dealt with appropriately. The Government have also tabled many other amendments, which are largely technical. I want to concentrate on amendment No. 27, which deals with section 435 of the Proceeds of Crime Act 2002. The section originally ensured that the director of the Assets Recovery Agency could use the information that he obtained in the exercise of one set of functions in connection with any of his other functions. In other words, under the 2002 Act, the director could use information gained for one purpose in another context. When the Bill was in Committee, the Government tried to delete section 435 from the 2002 Act. The measure before us reflects that. However, amendment No. 27 would reintroduce section 435, but in a modified fashion. The amendment would expand the scope and application of the Bill. Proposed new section 435 would apply especially to the Director of Public Prosecutions, the Director of Public Prosecutions for Northern Ireland and the Director of the Serious Fraud Office. The relevant point about the proposed new section is that it provides that the relevant Director—of Public Prosecutions, of Public Prosecutions for Northern Ireland or of the Serious Fraud Office—can use information obtained under part 5 or part 8 of the 2002 Act, “in connection with his exercise of any of his other functions (whether under, or in relation to, either Part, another Part of this Act or otherwise).” I am concerned about the extent and scope of “or otherwise”. Perhaps, when the Under-Secretary replies to the debate, he can confirm whether it is intended to have a much broader application than the original section 435—in other words, whether “or otherwise” covers all the relevant duties of the directors in all their contexts. Clearly, amendment No. 27 is another late amendment. A change of approach was felt to be required to section 435 of the 2002 Act, given that it was meant to be deleted, not used, at the outset. It would be interesting if the Under-Secretary shed some light on the reason for the change of approach. Why is the sharing of information felt to be required now when it was not believed to be necessary previously? I appreciate that the amendment’s application to several different bodies reflects the way in which the Assets Recovery Agency has been divided—its authorisations do not go to only one body but several different ones. From an enforcement perspective, the relevant directors to which subsection (4) of proposed new section 435 applies reflect the intended expansion of the enforcement agencies and bodies. However, there remains a question about whether the amendment proposes an appropriate or reasonable use or expansion of the previous power, which would have been limited to those under the 2002 Act. The proposed new section is much more wide ranging—there appears to be no limit on the use to which information gained under the 2002 Act can be put. That may be appropriate for ensuring that illegal acts or information relevant to other prosecutions and proceedings are discovered through the powers granted by the 2002 Act. However, it is a change to the previous position and it would therefore be helpful to inform the House of the intention of the proposed new section. Is it intended to be all encompassing? Are any protections intended? Will any limits be applied? Is the amendment as wide ranging as the words “or otherwise” suggest? We need to understand more clearly the Under-Secretary’s intention in amendment No. 27. We need to know its scope and I hope that he can answer the points that have been highlighted because it would be helpful to know the extent of the information-sharing powers and the use to which the information will be put so that we can properly understand the exact purpose of amendment No. 27.
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Mr. CoakerLet me revert to the question of the hon. Member for Dundee, East (Stewart Hosie) about Scotland. He will be pleased to…
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Mr. CoakerLabour
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Let me revert to the question of the hon. Member for Dundee, East (Stewart Hosie) about Scotland. He will be pleased to know that we have consulted the Scottish Executive to ensure that the status quo in relation to the Lord Advocate and Scottish Ministers is preserved. That ensures that there is no need for a legislative consent motion. Amendments Nos. 39 and 40 relate especially to Scotland. They would ensure that disclosures between SOCA, the Lord Advocate and Scottish Ministers will be tackled under the Serious Organised Crime and Police Act 2005 for SOCA’s Proceeds of Crime Act functions, and under the Proceeds of Crime Act 2002 for SOCA’s other functions. Disclosures by the other enforcement authorities are mainly tackled in the 2002 Act. Taxation information is covered in section 33 of the 2005 Act. Schedule 8(170) of the measure that we are considering also preserves the status quo. I hope that that helps the hon. Gentleman and that the answer is as illuminating to him as I am sure that it is to everyone else. Seriously, I hope that it is helpful. If any element of doubt remains, the hon. Gentleman should write to me or have a word with me afterwards and I shall ensure that we clarify anything that needs it. Let me deal with the points that the hon. Member for Hornchurch (James Brokenshire) made. I am pleased about his general welcome for the proposals. We identified a gap, which we sought to fill, so I appreciate his comments. However, we are continually trying to ascertain whether we can improve the operation of the civil recovery regime under the 2002 Act. In discussions with the Assets Recovery Agency and SOCA about the transfer of civil recovery powers to SOCA and other enforcement agencies, as the Bill sets out, we identified—at a late stage, it has to be said—the need for the new receiver. Experience of civil recovery shows that appointing an interim receiver, who has management, investigation and reporting functions, is unnecessary as well as expensive, but there is none the less a need for some sort of management role. We have tried to provide for that. At present, the civil recovery of the proceeds of crime in England, Wales, Scotland and Northern Ireland is the responsibility of the Assets Recovery Agency, as the hon. Gentleman knows. As he said, under the Bill those functions will be undertaken by a number of agencies—the Serious Organised Crime Agency, the Crown Prosecution Service, the Revenue and Customs Prosecution Office, the Serious Fraud Office and the Public Prosecution Service for Northern Ireland. Indeed, he pointed out the authorisations in proposed new section 435(4) of the 2002 Act.
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Mr. CoakerI beg to move, That the clause be read a Second time.
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Mr. CoakerLabour
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I beg to move, That the clause be read a Second time.
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Mr. Deputy Speaker (Sir Alan Haselhurst)With this it will be convenient to discuss the following: New clause 8—Stop and Search Power ‘(1) If a police officer o…
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Mr. Deputy Speaker (Sir Alan Haselhurst)Conservative
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With this it will be convenient to discuss the following: New clause 8—Stop and Search Power ‘(1) If a police officer of or above the rank of sergeant reasonably believes— (a) that incidents involving serious violence may take place in any locality in his police area, and that it is expedient to give an authorisation under this section to prevent their occurrence, or (b) that persons are carrying offensive weapons or dangerous instruments without good reason in any locality in his police area, he may give an authorisation that the powers conferred by this section are to be exercisable at any place within that locality for a specified period not exceeding— (c) 6 hours in the case of an officer of the rank of sergeant; and (d) 24 hours in the case of an officer of the rank of inspector or above. (2) If it appears to an officer of or above the rank of superintendent that it is expedient to do so, having regard to— (a) the need to prevent injury or loss of life; (b) offences which have, or are reasonably suspected to have, been committed in connection with any activity falling within the authorisation; and (c) all relevant information giving rise to the belief of the relevant police officer specified in subsection (1), he may direct that the specified period during which the authorisation conferred under subsection (1) shall be extended to a period not exceeding a maximum of 48 hours. (3) If a police officer gives an authorisation under subsection (1) he must, as soon as it is practicable to do so, cause an officer of or above the rank of superintendent to be informed. (4) This section confers on any constable in uniform power— (a) to stop any pedestrian and search him or anything carried by him for offensive weapons or dangerous instruments; (b) to stop any vehicle and search the vehicle, its driver and any passenger for offensive weapons or dangerous instruments. (5) A constable may, in the exercise of the powers conferred by subsection (4) stop any person or vehicle and make any search he thinks fit whether or not he has any grounds for suspecting that the person or vehicle is carrying weapons or articles of that kind. (6) If, in the course of a search under this section, a constable discovers a dangerous instrument or an article which he has reasonable grounds for suspecting to be an offensive weapon, he may seize it. (7) A person who fails to stop, or to stop a vehicle, when required to do so by a constable in the exercise of his powers under this section shall be liable on summary conviction to imprisonment for a term not exceeding one month or to a fine not exceeding level 3 on the standard scale or both. (8) Any authorisation under this section shall— (a) be given in writing signed by the officer giving it or, where that is not practicable, recorded in writing as soon as it is practicable to do so, and (b) specify— (i) the grounds on which it is given, (ii) the period during which the powers conferred by this section are exercisable, and (iii) the locality in which the powers conferred by this section are exercisable. (9) The provisions of this section, so far as they relate to an authorisation by a member of the British Transport Police (including one who for the time being has the same powers and privileges as a member of a police force for a police area), shall have effect as if the references to a locality in his police area were references to any locality in or in the vicinity of any policed premises, or to the whole or any part of any such premises. (10) Where a vehicle is stopped by a constable under this section, the driver shall be entitled to obtain a written statement that the vehicle was stopped under the powers conferred by this section if he applies for such a statement not later than the end of the period of 12 months from the day on which the vehicle was stopped. (11) A person who is searched by a constable under this section shall be entitled to obtain a written statement that he was searched under the powers conferred by this section if he applies for such a statement not later than the end of the period of 12 months from the day on which he was searched. (12) Where a constable has carried out a search in the exercise of the power under subsection (4) he shall make a record of it in writing unless it is not practicable to do so in which case he shall make such written record as soon as practicable after the completion of the search. (13) Section 60 of the Criminal Justice and Public Order Act 1994 is hereby repealed. (14) In this section— “British Transport Police Force” means the constables appointed under section 53 of the British Transport Commission Act 1949; “dangerous instruments” means instruments which have a blade or are sharply pointed; “locality” means any place or area which at the time the authorisation under this section is given the public or any section of the public has access, on payment or otherwise, as of right or by virtue of express or implied permission or any other place to which people have ready access which is not a dwelling; “offensive weapon” has the meaning given by section 1(9) of the Police and Criminal Evidence Act 1984 or, in relation to Scotland, section 47(4) of the Criminal Law (Consolidation) (Scotland) Act 1995; and “policed premises”, in relation to England and Wales, has the meaning given by section 53(3) of the British Transport Commission Act 1949 and, in relation to Scotland, means those places where members of the British Transport Police Force have the powers, protection and privileges of a constable under section 53(4)(a) of that Act (as it relates to Scotland). (15) For the purposes of this section, a person carries a dangerous instrument or an offensive weapon if he has it in his possession. (16) The powers conferred by this section are in addition to and not in derogation of, any power otherwise conferred.’. Government amendments Nos. 85 and 86.
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Mr. CoakerWe come to an important group, as all hon. Members would agree. New clause 9 concerns police powers of stop-and-search…
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Mr. CoakerLabour
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We come to an important group, as all hon. Members would agree. New clause 9 concerns police powers of stop-and-search for dangerous instruments and offensive weapons. The issue is one about which we all share a deep concern, particularly in the wake of tragedies such as the murders of 11-year-old Rhys Jones and of 15-year-old Jessie James in Manchester just over a year ago, the fatal knifing of the promising young footballer Kiyan Prince in May 2006, and the thankfully non-fatal shooting of a 13-year-old boy in Manchester only this weekend. Notwithstanding any differences that we might have about the issue, I do not for one moment belittle the contribution that any hon. Member makes on it. I do not for one minute believe that any hon. Member has anything other than the desire to try to do what we can to prevent more tragedies and awful events from taking place on our streets. That is an important comment to make, given the heat that is sometimes generated around such debates, and one that hon. Members will understand, given the atmosphere in the Committee as we took the Bill through. The Government have responded to those tragedies and those concerns by investing £1 million in the tackling gangs action programme—a programme of focused work in areas of London, Manchester, Birmingham and Liverpool where gun crime and gangs are a particular issue—which was launched on 9 September. The programme’s aim is to reduce serious violence, particularly that involving the use of firearms by young people as part of gang-related activity. The Home Office is working with police and local authorities to design packages that will be most effective in each area, which will include both enforcement and preventive work, and will be delivered in partnership with a range of local agencies. New clause 9 would extend the stop-and-search powers contained in the Criminal Justice and Public Order Act 1994. Hon. Members will know that the hon. Member for Hornchurch (James Brokenshire) and his hon. Friends have tabled a related amendment, which I am unable to recommend that we support, as I shall explain. Although the police have routine powers of stop-and-search in situations where they have a reasonable suspicion that a person is carrying certain items, section 60 of the 1994 Act provides exceptional powers for the police to authorise the stopping and searching of persons and vehicles in a locality for knives and offensive weapons—in England and Wales that includes firearms intended to be used to cause injury—without requiring reasonable suspicion. The police may use that power when they believe that a serious violent incident is likely to take place or that persons are carrying weapons in the locality. That provides a preventive power that addresses situations where an anticipated incident has not yet happened or where public order is threatened by weapon carrying en masse. The new clause would add a third scenario in which the power could be used, which is where a serious violent incident has taken place, and where the power would be useful in locating and taking out of circulation the weapon used in the incident and in apprehending the perpetrator. The existing preventive powers in section 60 of the 1994 Act require written authorisation, but the police would be able to make an oral authorisation to use the proposed additional power, so as to avoid any delay in the crucial moments following a violent incident.
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James BrokenshireThe Minister has referred to the new scenario, which he described as being one where a serious violent incident has occ…
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James BrokenshireConservative
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The Minister has referred to the new scenario, which he described as being one where a serious violent incident has occurred. Presumably there must have been a reasonable belief in those circumstances that persons had been carrying an offensive weapon in that locality without due authorisation, so surely the second limb of section 60 of the 1994 Act would apply.
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Mr. CoakerThe hon. Gentleman knows that what we are extending is the right to stop and search either people or vehicles without r…
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Mr. CoakerLabour
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The hon. Gentleman knows that what we are extending is the right to stop and search either people or vehicles without reasonable suspicion in the locality of the persons concerned. What the new clause will do is increase the power available in a proportionate way. Indeed, the police have said that they welcome the addition to the stop-and-search powers under the 1994 Act. The effect of the new clause would be to fill a small gap, whereby the police are currently unable to use their section 60 powers following a serious violent incident if they do not anticipate a further incident taking place. Knife and gun crimes are often isolated incidents and are often not followed by any further incidents. The extension of the section 60 powers that we propose would cover that scenario and allow the police to make full use of the powers to locate the weapon quickly and take it out of circulation, and to apprehend the offenders. The safeguards already contained in section 60 of the 1994 Act relating to the rank of an officer who may make the authorisation and the length of the authorisation will remain in force, and will serve to ensure that the new extension to the powers is used only in a way that is necessary and proportionate. I am sure that hon. Members will agree that this extended power will provide the police with a useful additional tool in the fight against crime involving knives, guns and other weapons.
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Mr. Geoffrey Cox (Torridge and West Devon) (Con)Will the Minister tell us in what kind of circumstances this power would be useful?
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Mr. Geoffrey Cox (Torridge and West Devon) (Con)Conservative
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Will the Minister tell us in what kind of circumstances this power would be useful?
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Mr. CoakerAs the law stands at the moment, if there had been a shooting or a violent altercation involving knives, and the police…
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Mr. CoakerLabour
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As the law stands at the moment, if there had been a shooting or a violent altercation involving knives, and the police did not think that another incident of that nature was likely in the locality, they would not be able to use their section 60 powers. Under the new proposals, if the House agrees to them, the police would be able to react to the situation and to stop and search people or vehicles in an area, without reasonable suspicion, in order to try to locate the weapon or to apprehend the perpetrators of the crime. That would be a measured and proportionate response, given the safeguards that already exist under section 60 relating to the rank of the officer and the shortness of the time in which the power has to be used—namely, 24 hours, or 48 hours if a superintendent agrees to it. Many people would be surprised that, in those limited circumstances, that power is not already available to the police. What we are saying is that section 60 exists to prevent future gun crime, while the new provisions are about reacting to something that has already taken place.
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James Brokenshirerose—
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James BrokenshireConservative
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rose—
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Mr. Coxrose—
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Mr. CoxConservative
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rose—
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Mr. CoakerI shall give way to the hon. Member for Hornchurch first.
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Mr. CoakerLabour
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I shall give way to the hon. Member for Hornchurch first.
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James BrokenshireI should like to refer the Minister to section 60(1)(b), which gives the authorisation that he has described in circums…
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James BrokenshireConservative
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I should like to refer the Minister to section 60(1)(b), which gives the authorisation that he has described in circumstances in which a relevant police officer reasonably believes that a person is carrying dangerous instruments or offensive weapons in any locality in his police area without good reason. Obviously the police do not feel that they are covered by that provision, but surely when a violent incident has already taken place and there is a suspicion that someone is in possession of such a weapon, the section 60(1)(b) powers would apply to give the necessary authorisation.
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Mr. CoakerThat is not the view of the police, who are pleased that we are filling this gap and who support the new clause.
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Mr. CoakerLabour
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That is not the view of the police, who are pleased that we are filling this gap and who support the new clause.
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Mr. CoxMy hon. Friend the Member for Hornchurch (James Brokenshire) has, to some extent, anticipated the point that I was goin…
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Mr. CoxConservative
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My hon. Friend the Member for Hornchurch (James Brokenshire) has, to some extent, anticipated the point that I was going to make. If there has been a serious violent incident involving a weapon, that would be a pretty good ground for a police officer who came upon the scene fairly quickly to conclude that someone was carrying that weapon in the immediate vicinity. Under section 60, he could therefore make the appropriate declaration and exercise the power. May I put it to the Minister that the difference might be that the Government are now proposing an oral approval for the exercise of such powers, whereas approval has been required in writing up to now?
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Mr. CoakerThat is certainly one change. Both the existing scenarios will require written authorisation and will not be able to be…
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Mr. CoakerLabour
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That is certainly one change. Both the existing scenarios will require written authorisation and will not be able to be subject to an oral authorisation, but in circumstances involving the reaction to an incident that has taken place, the approval would be able to be given orally and followed up by written authorisation. Another situation in which this proposal might apply could involve the police believing that a weapon such as a knife had been passed on to someone else. The police might not be searching for the perpetrator, whom people might already have identified. Eye witnesses might have said that the person in blue jeans and a red jumper had done it, but he might have passed the weapon on to someone else. In those circumstances, the power to stop and search without reasonable suspicion of others would be a useful addition to the police’s powers to locate the weapon.
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James BrokenshireI want to seek clarification from the Minister on the question of oral authorisation that he has identified as being ne…
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James BrokenshireConservative
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I want to seek clarification from the Minister on the question of oral authorisation that he has identified as being necessary. Section 60(9) states that any “authorisation…shall be in writing signed by the officer giving it”, and that it “shall also be given in writing or, where that is not practicable, recorded in writing as soon as it is practicable to do so.” That wording suggests that it is possible to give an oral authorisation and to record it in writing later. That seems to be the oral authorisation that the Minister is describing. Does he therefore agree that these circumstances are already covered by section 60(9), or is he receiving different advice on this?
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Mr. CoakerI am receiving different advice, in the sense that, in the new scenario involving a reaction to an event that has taken…
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Mr. CoakerLabour
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I am receiving different advice, in the sense that, in the new scenario involving a reaction to an event that has taken place, speed will be of the essence. We shall need to be very careful indeed about requiring oral, rather than written, authorisation. That is why we are not proposing to change the requirement for written authorisation in circumstances involving prevention in relation to the two scenarios that already exist. As I have said, I am sure that hon. Members will agree that this extended power will provide the police with a useful additional tool in the fight against crime involving knives, guns and other weapons. Amendment No. 85 provides that the new clause should extend to England and Wales. We will work with the Scotland Office to consider how equivalent legislation should be taken forward in respect of firearms in Scotland, as the subject matter of the firearms legislation that includes search powers is reserved. However, the policing of offensive weapons, including knives and bladed instruments, is devolved. Amendment No. 86 amends the long title of the Bill to reflect the addition of this clause on stop-and-search powers. New clause 8 concerns police powers of stop and search for knives, guns and other offensive weapons. It would repeal section 60 of the Criminal Justice and Public Order Act 1994 and create a new clause in this Bill that would largely replicate it, with some changes to the way in which the powers it contains may be exercised. It is not clear to me why this approach has been taken of repealing and recreating, rather than amending, section 60. Section 60 provides the police with powers to authorise the stopping and searching of persons for knives and offensive weapons—which, in England and Wales, would include firearms intended to cause injury—without requiring reasonable suspicion that the person is carrying such a weapon, in a locality where a serious violence incident is anticipated or where the police believe that persons are carrying weapons. The new clause proposes some changes to section 60 in its current form: to lower the rank of the police officer who may make an authorisation—a sergeant would be able to make an authorisation for six hours, an inspector for 24; to add two additional considerations that must be taken into account when extending the period of the authorisation; and to allow for an authorisation to be made orally, rather than in writing, in the first instance. There are also some less significant technical changes to the application of the powers, and to some definitions contained in the clauses. The purpose of the new clause seems to be to increase the operational flexibility with which the police can make use of these powers, by ensuring that officers can respond to intelligence more proactively, and quickly make an authorisation under section 60 to prevent a violent incident from occurring. I have sympathy for the objectives of the new clause, and I agree that we should ensure the police have all the powers they need to tackle weapon-enabled crime, and that they should be able to make the most effective use of these powers operationally. As I have said, I commend the hon. Members for Hornchurch and for Taunton (Mr. Browne) for their measured approach, following the concerns expressed on both sides when a related amendment was removed from the Bill in Committee. In my view, however, the changes to the existing section 60 do not amount to very much, and add little of substance to the existing powers. The amendment that I have tabled to section 60 will increase the flexibility with which the power can be exercised in circumstances where a serious violent incident has occurred, by allowing for an authorisation to be made orally. I do not propose to change the other safeguards concerning the rank of the officer who may make an authorisation, and its duration, as I feel that they are important to ensure that the powers are used in a proportionate way.
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Mr. Charles Walker (Broxbourne) (Con)I understand that these powers would last for a certain number of hours after being invoked, but how big an area would…
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Mr. Charles Walker (Broxbourne) (Con)Conservative
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I understand that these powers would last for a certain number of hours after being invoked, but how big an area would they cover?
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Mr. CoakerThat would be a matter for the police to determine, though one would expect it be in a reasonably confined area. Whatev…
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Mr. CoakerLabour
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That would be a matter for the police to determine, though one would expect it be in a reasonably confined area. Whatever the size of the area, however, one key consideration is to ensure that police talk to and gain the confidence of the community. We want them to take the community with them in using these powers. I and other hon. Members, including my right hon. Friend the Member for Leicester, East (Keith Vaz), the Chairman of the Home Affairs Select Committee, have spoken to the police and want to ensure that the powers are used proportionately. It is important for the police to discuss with the local community what they are doing and why they are doing it. The police and the local community will be able to solve the problem together. Our proposals address the gap where existing powers do not apply when a serious violent incident has occurred, no further incident is anticipated and public order is not necessarily threatened by the carrying of weapons en masse. The Government new clause will extend the powers so that an authorisation under section 60 could be made in this scenario to assist the police in locating the weapon and apprehending the offender who used it, following a serious violent incident. New clauses 8 and 9 both address similar purposes, but I hope that hon. Members will agree that the Government new clause is more substantial and has greater purpose in that it effectively fills the gap that I have described. It will be more useful to the police, who have said that they welcome it, and it will be more effective at tackling gun and knife crime. I respectfully ask the hon. Member for Hornchurch not to press new clause 8. I also want to make it clear that we intend to maintain an ongoing dialogue with the police and other stakeholders. We intend to continue to keep our policy under review to ensure that the police have all the powers they need to tackle gun and knife crime, and we intend to revisit this matter if it becomes clear that further changes are required in order to meet the common objective of reducing knife and gun crime on our streets to the lowest possible level.
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James BrokenshireThere can be little doubt about the appalling consequences of violent crime and the need for appropriate measures, such…
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James BrokenshireConservative
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There can be little doubt about the appalling consequences of violent crime and the need for appropriate measures, such as stop and search, to help prevent it from happening. The headlines this year have been dominated all too frequently with news of victims of gun and knife-related violence. What has been particularly disturbing has been the age of the victims of these tragedies. The Minister made reference to a number of cases and I share with him strong feelings of condolence for the families and disturbance about the issues that these cases highlight. The murder of 11-year-old Rhys Jones, who was shot on his way home from football training in Croxteth, shocked the entire country. It put into sharp focus the urgent need to face up to violent crime and deal with gang culture, which acts like a cancer, destroying the lives of individuals, families and communities in too many of our communities across the country. In 1998-99, 864 people were injured or killed using a gun; whereas by 2005-06, the number had increased to 3,821—a fourfold increase. A study by the centre for crime and justice studies at King’s college, London found that attacks in which a knife was used in a successful mugging have risen from 25,500 in 2005 to 64,000 in the year running up to April 2007. Home Office research has shown that firearms are on sale in the criminal underworld for as little as £50, with polling commissioned by Policy Exchange indicating that nearly one in eight men know someone who has or has had an illegal firearm and that nearly a fifth of men say they would be able to acquire an illegal firearm. As for knives, according to a poll conducted for the Youth Justice Board in 2004, 28 per cent. of young people in mainstream schools had carried a knife in the last year. In evidence to the Home Affairs Committee, Superintendent Leroy Logan, deputy borough commander in Hackney, described a situation of “growing incidents of gratuitous violence committed by younger age groups...predominantly among themselves with an increasing use of weapons in an attempt to gain respect through violence.” The Committee also heard of the escalation of violence from young people, with one young person saying: “It has just escalated over the years and it has just got to the point where no-one is picking up fists, everyone is picking up guns. That is why it has just got so bad.” The clear indication is that there is a growing prevalence of offensive weapons in our community and, sadly, a willingness among some to use them. Some have even described the possession of guns as a “fashion accessory”. The situation is compounded by new routes of supply through the sale of weapons over the internet, for example, underlining the need for us to make our borders less porous and more secure. That is why it is right, in the context of the Bill, to consider the scope, adequacy and fitness for purpose of the current law relating to stop and search as part of wider measures to combat violent crime and the underlying causes of offending. During the Bill’s passage through the other place, Lord Marlesford successfully moved an amendment introducing a right for a police constable to seal off an area and to search people and vehicles for firearms by whatever means he considers appropriate, if he has reason to believe that people may be carrying firearms. The noble Lord said that the purpose of the amendment was to give the police “a simple and over-riding power which would enable them to make it far more risky for anyone to carry an illegal firearm”.—[Official Report, House of Lords, 30 April 2007; Vol. 691, c. 917.] In Committee, however, the Government removed Lord Marlesford’s amendment, following which I made it clear that we would reflect on the proposal, which we have now done. The two main existing statutory powers of stop and search are found in the Police and Criminal Evidence Act 1984 and the Criminal Justice and Public Order Act 1994. There are also additional provisions in the Firearms Act 1968 and the Terrorism Act 2000. Section 1 of PACE allows a police officer to stop and search a person in a public place for offensive weapons and other items. However, the power applies only where that police officer has “reasonable suspicion” that he or she will find such items. Those terms are further clarified in the codes of practice that sit alongside PACE. Under section 60 of the Criminal Justice and Public Order Act, to which the Government new clause relates, an officer of inspector rank and above has the right to authorise officers to stop and search people and vehicles within a specific locality for a period of up to 24 hours if they “reasonably believe” that crimes of serious violence may occur or that someone is carrying an offensive weapon. That authorisation can be extended by a further 24 hours with the consent of an officer of superintendent rank or above. It is important to note that this power may be exercised without the requirement of reasonable suspicion that would otherwise be needed under PACE. We believe that there is a need to make an important change to the powers under section 60 of the Criminal Justice and Public Order Act. We propose to create a new right for officers of the full rank of sergeant to authorise the stop and search of pedestrians and vehicles in a specific area for a period of up to six hours, if they reasonably believe either that incidents of serious violence may occur or that people are carrying guns, knives or other offensive weapons in that area. That authorisation could be extended to a maximum of 48 hours by further direction of an officer of the rank of superintendent or above. In addition, an officer of the rank of inspector or above would have an initial authorisation of 24 hours, capable of extension to 48 hours. New clause 8 gives effect to that.
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Mr. CoakerThe oral authorisation in section 60 applies only to the extension of an authorisation, not to the original authorisati…
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Mr. CoakerLabour
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The oral authorisation in section 60 applies only to the extension of an authorisation, not to the original authorisation.
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James BrokenshireThat is not clear from the wording of section 60(9), but, as I have said, I am happy to take on board any clarification…
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James BrokenshireConservative
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That is not clear from the wording of section 60(9), but, as I have said, I am happy to take on board any clarifications that are considered helpful. My general point is that I am not persuaded by the Minister’s argument that the proposal in new clause 9 is as significant as he has suggested. We believe that new clause 8 is proportionate and reasonable, and that as part of a framework of measures it will help to take weapons off our streets and make our communities safer places in which to live. As for whether the Government will feel persuaded to adopt our idea later and we will gain a new “magpie Minister”, we shall have to wait and see, but this is a serious and considered proposal. It provides an addition to the law that we believe will make an important contribution in helping to prevent serious crime, which is supposed to be at the heart of the Bill. It is intended to help in the fight against gun crime, knife crime and other crimes of serious violence, in which one victim is one victim too many. I hope that we shall have the opportunity to put it to the vote, and that it will receive the backing of the House.
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Keith Vaz (Leicester, East) (Lab)Let me begin by saying that this is no “magpie Minister” but an eagle, willing to swoop down and deal with all the drea…
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Keith Vaz (Leicester, East) (Lab)Labour
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Let me begin by saying that this is no “magpie Minister” but an eagle, willing to swoop down and deal with all the dreadful criminals who are engaged in such awful behaviour. I think we all share the concerns that have been expressed by both my hon. Friend the Minister and the hon. Member for Hornchurch (James Brokenshire) about the high-profile crimes that were committed in the summer this year: crimes such as the one against Rhys Jones, which have literally shocked the nation. Although crime has been falling, it is right for the Government to try to ensure—especially in this Bill—that the police are given sufficient powers to be able to deal with an increase in serious crime. It is also right for that to be done in this place, and for us to debate the issues. I think the Minister will find that there is all-party agreement about the need for us to give the police the powers that they need. However, I want to strike a note of caution over the proposals for extension of stop-and-search powers. I will not oppose the Government, because I believe that the thrust of what the Minister has said is correct, but I ask him to bear in mind a number of key facts, and I hope he will do so with the care with which I have always associated him. The hon. Member for Taunton (Mr. Browne) served on the Home Affairs Committee before I became its Chairman, and participated diligently in a report on young black men and crime that was published in the summer. The Government’s response arrived last Wednesday, within the time limit of two months but at a time when the Committee was abroad taking evidence on counter-terrorism. Nevertheless, it addresses the Committee’s concerns. On the issue of stop and search specifically, the Committee’s view is clear. Although there are benefits in giving the police additional powers, the Committee concluded unanimously that they were outweighed by the implications for the community trust and co-operation that the police need if they are to do their jobs effectively. That is, I think, the key fact. Our debate has been enlivened by the comments of Keith Jarrett, chairman of the National Black Police Association, who said over the weekend, in an open and transparent way, that he considered it important for the powers to be extended because that would give the police a better way of reaching those who commit crimes. I disagree with that view, as do other members of the association. I think that we need to look at the factual information before deciding to increase any powers. I have received no representations suggesting that the community want more stop-and-search powers because they would result in more people being apprehended; nor, I think, did the Committee during its extensive inquiry, which included the taking of evidence from young black people themselves. It is right that there should be engagement, and both the hon. Member for Hornchurch and the Minister, in their measured responses to this problem, pointed out the need for us to work within the community. Neither of them specifically said that the community itself was calling for increased powers. It is worth examining the statistics to get a brief flavour of the facts that have emerged as a result of the police use of stop and search. In 2004-05, 839,977 persons were stopped and searched and 12,400 stops of vehicles were recorded by the police under section 1 of the Police and Criminal Evidence Act 1984 and other legislation. Of those, 118,165 or 14 per cent. were of black people; 59,954 or 7 per cent. were of people of Asian origin; and 12,733 or 1.5 per cent. were of people of other ethnic origins. For England and Wales as a whole, the number of stop and searches rose by 14 per cent., from 737,137 in 2003-04 to 839,977, although that was less than the figure in 2002-03. Most of the rise was accounted for by an increase in the stopping and searching of people who were not black or Asian. Overall, black people were six times more likely to be searched than those who were not black—the ratio in 2003-04 was 6.4 times; if the figures for London are excluded, the ratio falls to 4.9 times. Asian people were 1.8 times as likely to be stopped and searched as white people, compared with 1.9 times as likely in the previous year. The important fact is that 11 per cent. of stop and searches resulted in an arrest. The proportion varied between police forces, from 7 per cent. in Gwent to 20 per cent. in the City of London. The problem facing us, which was correctly identified in the Select Committee report, is that the hit rate was still too low. People are prepared to accept an extension of powers if the hit rate will be improved or increased, but there was no indication from the Minister that that would happen as a result of what he proposes. We need to be cautious about the impact of this proposal. The hon. Member for Hornchurch, in his usual eloquent way, talked about proportionality. It is the big buzz word whenever we discuss such an issue, be it the 28-day detention period or another civil liberties matter, and it becomes extremely important. That is why I ask the Minister to examine the impact that the proposal will have on the black community. It is not right that we should have a certain set of laws that will result only in certain types of people being affected by an increase in police powers. It is important that we examine those figures. In conclusion, I accept the thrust of what both Front-Bench spokespeople say, although I do not support new clause 8, because it is not right when dealing with such serious issues that we should level down the rank of the person making the important decisions. The Minister is right to say that that should be kept at a certain policing level, because the difficulty of levelling it down is that things will increase. We need people of sufficient seniority to be able to deal with these important issues. He says that his proposal will help in the fight against serious crime, and I believe him, because he would not have brought the measure before the House unless he felt that it would help in the fight against crime. However, I ask him to examine the impact on communities, because once we start stigmatising communities in our country we shall be on the road to ruin for our multicultural society.
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Mr. Jeremy BrowneI echo the sentiments of every previous speaker about the shock and public concern that rightly and inevitably arises f…
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Mr. Jeremy BrowneLiberal Democrat
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I echo the sentiments of every previous speaker about the shock and public concern that rightly and inevitably arises from the terrible incidents that have had a high profile in the media in recent months, particularly those involving gun crime. May I suggest how the Government should proceed on this topic? There is a danger that we discuss stop and search narrowly. It is sometimes a vital power in the armoury of the police, but it is not the only power available to them. Another power is the so-called “mandatory sentence” that goes with being caught with a gun. People in my constituency and elsewhere do understand why it is not used more widely. They are led to believe that the mandatory term of five years automatically flows, save in exceptional circumstances, from someone being caught with a firearm, but it is applied in only a minority of cases. That stretches the word “mandatory” beyond most people’s understanding of its definition. The second area on which the Government need to concentrate to a greater degree is the smuggling of firearms. The third area, which has rightly been discussed by all political parties, is how we can culturally change attitudes to guns, particularly in some communities where they often appear to be regarded as a fashion accessory rather than the lethal weapon that we know them to be. Gun crime attracts far more media attention than some other crimes, often because the consequences are particularly devastating, despite its rarity. Annually, more people are killed by knives than by guns, and it is worth recalling that when we have this type of discussion. It is also wise not to exaggerate the scope of the problem. That is not to say that it is not a problem in every community—it could be, at any given moment, a problem that could affect anybody in this country—but more than half of the firearms incidents recorded in the most recent year, 55 per cent. to be precise, happened in just three police force areas, those of the Metropolitan police, in whose area we are having this debate, Greater Manchester and the West Midlands. All three of those force areas have their own specialist units to tackle gang-led drugs and gun crime: Trident, X-Calibre and Engage, in that order. Special provisions are being put in place where gun crime and other types of violent crime are particularly prevalent. Stop and search has a part to play in that, but it is not the be all and end all. I say that because we must strike a careful balance between protecting the individual’s physical safety and protecting the liberties of the individual citizen. It is a quite a draconian measure for the state to be able to stop people who have committed no criminal offence, or appear not to have done so, and search them. The power should be used with discretion and intelligence. I welcome the measures in the Government’s new clause 9, specifically the four changes that I have identified that take the debate forward from the suggestions made in another place earlier in the passage of this Bill. First, the Government are widening the scope of stop and search to non-firearms, including knives. I have mentioned just how important that consideration is for many people. Secondly, I support the oral authorisation being allowed in the exceptional circumstances that the Minister outlined. It is important that when such instances arise, the police can be fleet of foot and are not held up in a way that most people would think perverse. Thirdly, and this is where I differ from the proposals being put forward by the Conservative party, there is a need for a senior officer to authorise these decisions. If that power is to be wielded at the expense of an individual citizen going about his or her ordinary business, people will be reassured if the decisions are made by a senior officer. Finally, I am encouraged that the Government have removed some of the grey areas that were mentioned in the other place, especially the expression “by any means necessary”, which is too wide a definition of how powers of stop and search can be used. I am also confused by the Conservatives’ position and perhaps a Front Bencher could assist me. The Conservative party’s proposals, which were published on 28 August and which have the racy title, “It’s Time to Fight Back”, which is what one gets if one employs the former editor of the News of the World to decide one’s policies, contain a description by the party leader. He says: “This document sets out what the Conservative party would do in Government to tackle Britain’s crime crisis.” The first proposal is: “Abolish the stop form…A Conservative Government will scrap the stop form and allow officers to stop and question an individual without making a written record.” However, new clause 8, tabled by the Conservatives, states: “Any authorisation under this section shall…be given in writing signed by the officer giving it.” Further on, it states: “Where a vehicle is stopped by a constable under this section, the driver shall be entitled to obtain a written statement that the vehicle was stopped under the powers conferred by this section…A person who is searched by a constable under this section shall be entitled to obtain a written statement…Where a constable has carried out a search in the exercise of the power under subsection (4) he shall make a record of it in writing”— and so on.
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James BrokenshireI am delighted to have the opportunity to intervene. I would point out to the hon. Gentleman that there is an important…
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James BrokenshireConservative
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I am delighted to have the opportunity to intervene. I would point out to the hon. Gentleman that there is an important distinction between a stop and a stop and search. We believe that a stop form for a stop is inappropriate, but we recognise that recording in relation to stop and search is a different matter.
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Mr. BrowneI am grateful for the clarification. So were the Conservatives’ policy to be implemented, no form would be required on…
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Mr. BrowneLiberal Democrat
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I am grateful for the clarification. So were the Conservatives’ policy to be implemented, no form would be required on stopping and questioning an individual, but if they were searched by a junior officer it would have to be put in writing. It was worth clarifying that point, because the impression created by Conservative Front Benchers is that all the paperwork is terribly burdensome and were they ever again in a position to implement policy, they would do away with all those burdens that the police find so irksome on occasion. However, that is not what new clause 8 says. I suppose that they have managed to achieve the objective of satisfying the public that the powers will not be widely used while also satisfying those who are concerned about civil liberties. To highlight a concern for people who take civil liberties seriously, I wish to refer to two written answers that I have received this year. On 17 April, the Government confirmed that there were 41,300 incidences of stop and search in 2005, and that represents a 94 per cent. increase in the past 10 years. On 16 October, the Government confirmed that there had been a fourfold increase in the number of people stopped under the Terrorism Act 2000, to 32,062 in 2004-05. I draw the Minister’s attention to the scale of that activity. To extend the scope of stop and search and the circumstances in which it can be used will not automatically imply that more people will be stopped and searched. It may mean that the power is used with greater targeting, accuracy and effect, and for the sake of everyone who is concerned about gun and knife crime, I hope that that is the case.
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Mr. CoxThe power to stop and search randomly is a power that should be exercised with the greatest of care. The right hon. Mem…
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Mr. CoxConservative
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The power to stop and search randomly is a power that should be exercised with the greatest of care. The right hon. Member for Leicester, East (Keith Vaz) made some telling points about the sensitivity that the exercise of such an apparently random power requires, especially in communities where ethnic minorities predominate. There is no doubt that in the past the power has been exercised without the necessary sensitivity, and that has caused considerable resentment in many of the communities that have been exposed to it. There is also no doubt, however, that we are faced with an unprecedented situation. Serious violent crime is rising. The prevalence of the use of knives on our streets is a phenomenon that is growing alarmingly. We can all cite anecdotal evidence of the use of knives at increasingly younger ages. The law enforcement authorities are faced with the impossibility of preventing the use of knives on our streets with ever diminishing inhibition by ever younger perpetrators. It is in those circumstances that we have heard voices recently drawing to our attention the need for greater powers for the police to be able to stop and search. It is important to recall that the powers that are exercisable under the Criminal Justice and Public Order Act 1994 can be exercised only if an inspector has decided that he has reasonable grounds to suspect that a serious violent incident may take place in a particular locality or that in that particular locality there are grounds to suspect that someone is carrying a dangerous weapon. It is important to carry out the kind of community relations and consultation of which the right hon. Gentleman spoke. It is important to get across to those communities that when the police use the power that they were given under the 1994 Act, they are doing it to protect the public, including not only those who have not been stopped, but those who have been stopped and are innocent. It is not always done with the necessary sensitivity. The right hon. Gentleman may have had experience, in a professional capacity, as I certainly have, of incidences of stop and search that have not been carried out with the sensitivity required. However, it is vital that we should remember that that critical power is used to protect all members of society, including vulnerable members of the public who are at risk from those wielding those types of weapons. We must start from the position that the House has conferred, in carefully safeguarded circumstances, an important power on the police. We have to ask whether we have reached a situation in which we need to consider a limited—and also carefully safeguarded—extension of that power. I believe that we have reached that position. The tide of violence that seems to be sweeping our streets among not even adults, but children, needs some measure of response. However, as the right hon. Gentleman said in his impressive contribution, it must be a measured and limited extension. That is why the Government’s intention in the amendment is understandable and laudable. They propose a narrow extension. They wish to clarify the law so that there is no doubt that, where a serious violent incident has taken place, a police officer of the rank of inspector may say, “I have reasonable grounds to believe that somebody may be carrying the weapon that has been used in that incident, therefore I shall authorise random stop and search powers, in the interests of detecting crime”—note that it is for the purpose of detecting crime, not preventing it.
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Mr. WalkerI am grateful to be called to speak in this important debate. I did not serve on the Committee, but I speak as a parent…
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Mr. WalkerConservative
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I am grateful to be called to speak in this important debate. I did not serve on the Committee, but I speak as a parent. Like many Members, I am appalled and heartbroken every time I see yet another mother or father—another family—mourning the loss of a child. It is not just the life of the child that is destroyed—gone, vanished—but many connected lives: brothers and sisters, friends, grandparents, mothers and fathers and aunts and uncles. It is a tragedy beyond compare when a young life is needlessly taken, which is why it is so important for us in this place to come together, not just today but every day, to try to reduce the incidence of such tragedies. I listened carefully to the speech of the right hon. Member for Leicester, East (Keith Vaz). He made some good points. A couple of weeks ago, I was pulled over by my police when I was with my daughter travelling back from the school play. We had bought a bag of doughnuts from Tesco and were on our way home when for no reason that I could see—although it was something to do with my driving—I was pulled over by a police car that had followed me for a mile and a half. I was angry and frightened—that is me, a middle-class Member of Parliament. When I recounted the story to a friend, he asked, “How would you feel, Charles, if that was happening weekly or fortnightly and if you were black or Asian?” I can tell the House that I would feel hurt, angry and embittered towards those subjecting me to such searches. That is why we need to be careful. We need to balance the interests of communities and the people who live in them with the interests of those who are stopped and searched.
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Keith VazI am most grateful to the hon. Gentleman for recounting that story. What was the police explanation for why he was stop…
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Keith VazLabour
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I am most grateful to the hon. Gentleman for recounting that story. What was the police explanation for why he was stopped?
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Mr. WalkerFirst, the officer asked whether I had been drinking, to which I replied that I had not had a drink for three and a hal…
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Mr. WalkerConservative
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First, the officer asked whether I had been drinking, to which I replied that I had not had a drink for three and a half years. I asked why he had pulled me over and he said that my driving was erratic. I disagreed with that. Then he said, “And you were following the speed limit all the time we were behind you.” I explained that as the local Member of Parliament I tend not to speed in my constituency as I do not want tickets. I was also told that I came under suspicion because I approached a roundabout at 20 mph, whereas most people do so at between 30 to 40 mph. There is a place for the proposed laws, but we need to make sure that they are applied sensitively and that we do not alienate members of the community whom we need on our side. If we are to tackle the appalling rates of gun and knife crime, it must be a community-wide exercise. We cannot rely on the police to do it for us, because if we do so, they will surely fail. We need to involve community leaders, parents and schools. They have the power to reach young people at an early age and set them on the right path, to teach them the difference between right and wrong. These laws alone will not end gun and knife crime. When they come into force, gun crime and knife crime will not fall quickly or automatically. The laws are part of a template; they are building blocks for reducing gun and knife crime, but to do so we need fully to engage our communities and the people who can and do reach young minds to ensure that they choose the right path and make the right decisions. It is not just that the young lives of those who are killed so tragically are snuffed out; the perpetrators of those crimes are affected, too. Often they are young people or children—almost babies. As soon as they use a knife or a gun their life, in effect, is over, too. It is important that the House understands that the issue is deeply complex. All parties must work together to ensure that over the next decade we have a happier story to tell than over the past decade.
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Mr. CoakerI thank all Opposition Members and my right hon. Friend the Member for Leicester, East (Keith Vaz) for an excellent deb…
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Mr. CoakerLabour
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I thank all Opposition Members and my right hon. Friend the Member for Leicester, East (Keith Vaz) for an excellent debate. It would be easy in such debates for hon. Members on both sides of the House to grandstand, to try to grab headlines and to make the easy speech. However, as Opposition Members and my right hon. Friend have said, this issue cannot be solved by headline-grabbing or populist measures, but requires a menu that includes all the various options available to us. No one can fail to have been moved by the families involved, and the hon. Member for Hornchurch (James Brokenshire), my right hon. Friend and, indeed, all hon. Members have met some of them and seen the consequences of what we are talking about: real communities, real families and real young people, whose lives have been devastated by this sort of violent crime. If I could do one thing at the Dispatch Box that meant that no one would be shot or stabbed and that there would be no violence at all on our streets, I would do it: I would pass that measure or seek to ensure that the House passed it tomorrow. Indeed, if any hon. Member had a magic wand that could immediately bring an end to all that violence, he or she would surely wave it. In fact, the debate has demonstrated that the solution and the progress that must be made will come about through steady actions, and the Government have taken a number of them. I want to mention a few of those actions before I address some of the comments made by Members. The Government have recognised that this is not only a matter of enforcing and strengthening the law; there are other solutions, although, of course, enforcing the law has an important part to play. The hon. Member for Taunton (Mr. Browne) mentioned the mandatory minimum five-year sentence, about which there are concerns, although the length of sentence for the possession of firearms has increased from 12.1 months in 2004 to 47.3 months. Again, the hon. Gentleman mentioned the need for the supply of guns to be prioritised, and Customs has agreed to make tackling the supply of guns a priority for the first time. Customs will therefore generate fresh intelligence on gun supply and prioritise suspected trafficking cases—another step forward that we have taken. Prevention is also vital. Every hon. Member who spoke in the debate not only talked about the enforcement of the law and the tough measures that need to be taken, but pointed out that prevention is crucial and that the work that takes places in communities is essential. Every Member will have been to different communities and seen the work of community groups. Surely, if we have to do one thing, it is to empower community organisations and groups in the affected areas to take the required action. We are looking at what more we can do to support organisations, such as Boyhood to Manhood, which works particularly well in Southwark to extend positive role models for young people, and Mothers Against Guns and Mothers Against Violence—run by people who have used the horror of what has happened to their own family to try to ensure that it does not happen to others. We are considering what we can do for street pastors—people who, through the power of their faith, go out on the streets to take action against some of the problems that we have seen. Let me share just one experience when I was out with the street pastors in Brixton recently, dealing with problems on the street. I do not know what other hon. Members think, but I imagined that all the street pastors would be 6 ft 6—all built a bit like the England rugby pack. [Interruption.] It is good example, but an unfortunate result. In fact, when an incident arose, the person who went over and dealt with it was a 78-year-old grandmother. The young people she spoke to respected and valued her. If we could only harness such power, we could do more to prevent crime. It is not only about enforcement or tackling the supply of guns, but about prevention and working with communities. As we have heard, it is also about trying to encourage witnesses to come forward, protecting them and giving them confidence.
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Keith VazThe hon. Member for Broxbourne (Mr. Walker) has told us what happened when he was stopped. He is clearly not black. Obv…
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Keith VazLabour
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The hon. Member for Broxbourne (Mr. Walker) has told us what happened when he was stopped. He is clearly not black. Obviously, the police were not after his doughnuts. They stopped him because he seemed to be obeying the law. So as part of the deal to vote for more police powers, will my hon. Friend and his colleague, the Minister for Security, Counter-Terrorism, Crime and Policing, ensure that the police understand that, in giving them more powers, we want them to act sensitively, whether towards black people or people who are not black?
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Mr. CoakerI thank my right hon. Friend for that intervention. We will, of course, ensure—I give him this commitment—that in exten…
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Mr. CoakerLabour
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I thank my right hon. Friend for that intervention. We will, of course, ensure—I give him this commitment—that in extending these powers, as we hope to do under new clause 9, we speak to the police and reinforce the need for proportionality in everything that we do. Indeed, as he will know, one of the reasons we set up the stop-and-search action team was to try to address both disproportionality and to assist forces in making arrangements to record stops and to ensure that stop-and-search powers are properly implemented by the police. The gist of the debate is that we all agree that stop-and-search powers need to be revisited at times. We need to ensure that our laws work effectively. However, I tell the hon. Member for Hornchurch that my key objection, which is supported by the hon. Member for Taunton and by my right hon. Friend the Member for Leicester, East, is our concern about lowering the rank of officer who can authorise stop and searches. We are not persuaded that that would be the right thing to do. Notwithstanding the comments of the hon. and learned Member for Torridge and West Devon (Mr. Cox), in most areas that I visit across the country, both urban and rural, the local area commander—the person responsible for the delivery of neighbourhood policing—is the local inspector. In the first instance, the local inspector is the most appropriate person to determine the initial authorisation. The hon. and learned Member for Torridge and West Devon, who made a good speech, agreed with the action that the Government are taking and believed that it would clarify the law on extending stop-and-search powers to something that happens after a violent incident has taken place, so that we can detect crime, thus enhancing the existing powers that are intended to prevent crime. He asked us to keep the various stop-and- search measures under review at all times, and to keep under consideration the points made by the hon. Member for Hornchurch. I said in my introductory remarks that we will always keep the various powers that are available under review to ensure that the law is good, and that improvements are made where necessary. The hon. and learned Member for Torridge and West Devon asked me whether there is any need for proximity in time. There is no such requirement in the new clause, but the new powers should be used as close to the time of the incident as is possible. The hon. Member for Broxbourne talked about the need to ensure balance in the law. He made an important point. In everything that we do with respect to stop and search, we recognise that we are talking about an extension of the power and an erosion of civil liberties. In the main, that is done to try to ensure that we prevent crime and protect our communities—something that we all wish to do. The Government new clause offers a further way of protecting the public, but it does so in a proportionate and considered way. I urge the House to support it. Question put and agreed to. Clause read a Second time, and added to the Bill. New Clause 5 Sharing of communications data ‘In section 25(1) of the Regulation of Investigatory Powers Act 2000 (c.23) (interpretation of Chapter II), for paragraph (g) substitute:— “(g) an ambulance service or fire authority; (h) the Health and Safety Executive; (i) the Serious Fraud Office; (j) any such other public authority not falling within paragraphs (a) to (i) carrying out duties of a similar type or nature to those public authorities identified in those paragraphs as may be specified for the purposes of this subsection by an order made by the Secretary of State.”.’.—[Mr. Grieve.] Brought up, and read the First time.
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Mr. Dominic Grieve (Beaconsfield) (Con)I beg to move, That the clause be read a Second time.
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Mr. Dominic Grieve (Beaconsfield) (Con)Independent
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I beg to move, That the clause be read a Second time.
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Mr. Deputy SpeakerWith this it will be convenient to discuss the following: Government amendments Nos. 42 to 46. Amendment No. 83, in tit…
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Mr. Deputy SpeakerConservative
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With this it will be convenient to discuss the following: Government amendments Nos. 42 to 46. Amendment No. 83, in title, line 11, leave out from ‘amendments’ to ‘in’ in line 12.
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Mr. GrieveI present to the House new clause 5, which stands in my name and the names of my hon. Friends; amendment No. 83 is cons…
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Mr. GrieveIndependent
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I present to the House new clause 5, which stands in my name and the names of my hon. Friends; amendment No. 83 is consequential on it. Through its long title, the Bill offers us the opportunity of looking at the working of the Regulation of Investigatory Powers Act 2000, to which the Government have proposed minor amendments. RIPA, as it is known, is an extremely controversial statute. It was introduced to provide an overarching framework under which material could be obtained by Government agencies for a number of purposes set out in the legislation. The argument was that by setting out an overarching structure, we would simplify existing rules, which provide law enforcement agencies with a variety of powers to obtain data communications material. I should make it clear that historically there has been absolutely no doubt that such material is required by law enforcement agencies. RIPA followed on—this is rather an important aspect of the matter—from the anti-terrorism measures of 2000, in which the Government came to a voluntary agreement with service providers that the Government would retain data for counter-terrorism purposes. However, when RIPA came on to the statute book, it became apparent that far from being confined to the purposes of anti-terrorism, the material—which, under that voluntary agreement, was retained for 12 months—would be made available for a much wider range of uses. Those uses included not only the ones that one might normally expect for preventing crime, but use in connection with “the interests of the economic well-being of the United Kingdom”, and “the purpose of protecting public health”, as well as public safety, emergencies, collecting taxes and, most significantly of all, “for any purpose…which is specified for the purposes of this subsection by an order made by the Secretary of State”, even if that purpose was not included in the main body of RIPA’s text. RIPA specified a number of public authorities whose inclusion most Members would regard as absolutely straightforward—police forces, the National Criminal Intelligence Service, the National Crime Squad, Customs and Excise, Inland Revenue and intelligence services—but in addition it provided a catch-all phrase, which allowed the inclusion of “any such public authority not falling within” the list “as may be specified…by the Secretary of State.” Since then, if my research is correct, three statutory instruments have been made by the Government, producing an extremely long list of public authorities that may gain access to such material for a variety of purposes. Again, it might be said in this House that some of the inclusions are understandable; for example, the emergency services are included, for the purposes of investigating crime—in that case, I think that the crime is likely to be hoax calls. However, the list goes on to include the Department of Trade and Industry, the Department for Transport, the Department for Environment, Food and Rural Affairs, the Food Standards Agency, the Department of Health, Home Office immigration services, county and district councils, the Charity Commission, the Environment Agency, the Gaming Board, the Information Commissioner, universal service providers—that is essentially the Post Office—and the Postal Services Commission. And the list goes on. The vast majority of the bodies listed are included for the purposes of detecting or preventing crime, but that prompts the question whether it is a proportionate use of RIPA’s draconian powers to apply them to such purposes. The criminality that a large number of the organisations mentioned are likely to investigate is not of the most serious kind. Let us take as an example the Health and Safety Executive, which our new clause would preserve in the list. I have prosecuted quite frequently for the HSE, and I accept that there may be times when, in the course of bringing a prosecution, getting hold of data relating to telephone calls that a person might have made could be useful, but the irony is that that power has always existed for use in the course of criminal proceedings. If someone thinks that they will need such material, they can always apply to the judge during the proceedings, and that applies to every single one of the organisations with which we are concerned. What the Government have done is provide a general power, not for the purposes of prosecuting a case, but for background investigation of the activities of individuals, where that might be necessary for the prevention of crime. It is also noteworthy that at least one of the powers in RIPA—that in clause 28(3)(c), which relates to “the interests of the economic well-being of the United Kingdom”— has, as far as I am aware, never been used. Its use would be a rather controversial subject, particularly if it was not linked to criminality. When the original RIPA rules were presented in Committee upstairs, there was a storm of protest, particularly because the Government introduced the rules, and had the debate, before the publication of the report by the Joint Committee on Human Rights, which highlighted the fact that it thought that many of the powers being granted might well not pass the proportionality test, if they were challenged. Of course, one of the problems that we have is that challenging the powers is difficult, because most people will never know that they have been investigated, and that the powers have been used. Of course, the Information Commissioner can look into those matters, but individuals may well have their privacy invaded without ever being able to protest, because they will never have known about it. In view of that, we thought it right to try to encourage the Government to revisit the issue during the passage of the Bill. New clause 5 is designed to allow just that. It preserves the inclusion of the public authorities that were originally provided for in RIPA—police forces, intelligence services and the like—but would merely add: “(g) an ambulance service or fire authority; (h) the Health and Safety Executive”— because we recognise that public safety cases may require such investigation— “(i) the Serious Fraud Office” and, most importantly, “(j) any such other public authority not falling within” the list that I gave “carrying out duties of a similar type”. The purpose is to restrict the further list of public authorities essentially to the normal law enforcement agencies, and not, as is the case under the Bill, progressively to widen the scope, with the distinct possibility—and this is the most worrying prospect—that it could be further widened in future simply by statutory instrument.
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The Minister for Security, Counter-Terrorism, Crime and Policing (Mr. Tony McNulty)I have no doubt that many of matters raised by the hon. Member for Beaconsfield (Mr. Grieve) are legitimate matters for…
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The Minister for Security, Counter-Terrorism, Crime and Policing (Mr. Tony McNulty)Labour
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I have no doubt that many of matters raised by the hon. Member for Beaconsfield (Mr. Grieve) are legitimate matters for debate, but this is not the time for that debate. As he suggested, new clause 5 will not achieve what he seeks to achieve, not least because of the orders that were passed on 1 October in the House. We can debate the rocky road that we have travelled on RIPA, but that is a debate for another time. The new clause seeks to address the list of public authorities that may obtain communications data under chapter 2 of part 1 of RIPA, but it fails to achieve that aim. RIPA already provides that an order specifying additional public authorities that may obtain communications data must be debated and approved by a resolution of each House. We had a substantive public debate in 2003 in which we set out public authorities’ necessary and proportionate requirements for obtaining data, and explained why various authorities had investigating and detecting duties in safeguarding public safety and public health. Parliament discussed the Regulation of Investigatory Powers (Communications Data) Order in November 2003, an order amending that order in 2005, and a further amendment in 2006. Public authorities’ requirements were set out in the explanatory memorandums for each order. The new clause does not undo any of those orders.
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Mr. GrieveI recommend that the Minister read the debate on the 2003 order. It was an extremely bad- tempered event, because the G…
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Mr. GrieveIndependent
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I recommend that the Minister read the debate on the 2003 order. It was an extremely bad- tempered event, because the Government were late in presenting the relevant material to the House and they did not wait for the report from the Joint Committee on Human Rights. Many of the criticisms that I have made today were voiced then, but the Government have not done anything about them.
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Mr. McNultyI was not challenging the notion that those debates were bad tempered—I have read them, and that is extremely clear—but…
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Mr. McNultyLabour
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I was not challenging the notion that those debates were bad tempered—I have read them, and that is extremely clear—but they are over, and orders and secondary legislation have been passed. There is nothing in the new clause that changes any of that, even though the hon. Gentleman said that that is the aim of the new clause. I am happy to debate RIPA and what public authorities should, or should not, be allowed to do, and what they can do with the three different grades of communications data. Much of the discussion of the orders that came into force on 1 October was based on erroneous facts. It was thought that hundreds of authorities would be allowed access to the highest level of communications data, but that is not the case. It was suggested that any number of public authorities would be allowed to access that data for tax purposes, but that is simply not the case. Naturally, Her Majesty’s Revenue and Customs can do so, because that is part of its duty. We were given the impression that, notwithstanding the detailed orders and regulations, there would be a free-for-all, in which, as the hon. Gentleman implied, every arm of the state would have ready access to the most detailed communications data. That is not the case, but new clause 5 fails to address that. It may a useful device in airing the notion that we need a detailed debate on the relevant provisions in RIPA—I give the hon. Gentleman that—but this is not the time to hold that debate.
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Mr. GrieveI disagree with the Minister. If the new clause were accepted, it would immediately create an incompatibility between R…
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Mr. GrieveIndependent
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I disagree with the Minister. If the new clause were accepted, it would immediately create an incompatibility between RIPA’s new wording and the scope of the orders passed by the House. The primary legislation would no longer back up the full scope of the secondary legislation, particularly the organisations that have been given those powers.
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Mr. McNultyThe hon. Gentleman is far more erudite and expert in those legal matters than I am. I watched with admiration as he dan…
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Mr. McNultyLabour
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The hon. Gentleman is far more erudite and expert in those legal matters than I am. I watched with admiration as he danced on the head of a legalistic pin to good effect, but I am told in substantial terms that what he seeks will not be achieved by the measure. The impact that he seeks to achieve on the orders that came into force on 1 October will not prevail. That is a matter of dispute: the Department’s lawyers challenge his view—he will be used to that position, too. However, there will be opportunities—I go this far with him—to revisit and discuss the substance of the provisions of RIPA with respect to communications data. The new clause is not the way to do that. Let me deal with the proposals in the Government amendments, which are straightforward. They make it clear that only senior HMRC officials can authorise the use of intrusive surveillance powers. I am pleased to bring the amendments to the House in response to concerns raised in Committee, principally by the hon. Member for Hornchurch (James Brokenshire). Commenting on concerns raised by the Law Society, he asked that the Under-Secretary of State for the Home Department, my hon. Friend the Member for Gedling (Mr. Coaker)—he was in Committee, happily, not me—consider whether it could be made clearer precisely who was mandated by the provisions. That is what the Government amendments seek to achieve. Although I accept the broad thrust of the contextual introduction by the hon. Member for Beaconsfield to debates about RIPA and communications data, this is not the place or the new clause to change that. In any case, the new clause as drafted would not achieve the hon. Gentleman’s objective. In that happy consensual spirit on the Government amendments and partially consensual approach on new clause 5, I hope he will withdraw new clause 5 and that the Government amendments, tabled not least at the insistence—very eloquent, I am sure—of the hon. Member for Hornchurch, prevail.
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Mr. GrieveLet me start by saying some pleasant things to the Minister. I thank him for the amendments that the Government have ta…
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Mr. GrieveIndependent
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Let me start by saying some pleasant things to the Minister. I thank him for the amendments that the Government have tabled in respect of the level of officer in Customs and Excise authorising intrusive surveillance. We are grateful for the Minister’s response to the representations made by my hon. Friend the Member for Hornchurch (James Brokenshire). We welcome the amendments and will gladly support them. On our amendments, there is that classic difference of approach between Government and Opposition, which, I am afraid, will continue to separate us. The Minister may be right that the Bill, which deals with many other matters, was not the easiest place for us to focus on what we perceive to be the serious deficiencies of RIPA. I also accept that amending the legislation in order to achieve all the points that I raised in the course of debate is difficult without a complete overhaul of the architecture of the Act, but it is still worth attempting. I differ from the Minister in the belief that if the amendment were passed, it would alter the way in which the Act can be interpreted and which public authorities could remain on the list of those who could obtain the information. With that in mind, and with the background fact that the legislation is causing public disquiet, on which there has been a considerable amount of comment, even though I am the first to accept that its origins may have been reasonable when it was first considered, it is the duty of the Opposition at least to seek the opinion of the House to see how many Members share that disquiet. I shall therefore put the new clause to the vote. I am grateful to the Minister for showing a willingness to listen to some of the problems that have been caused by this area of legislation. We are undoubtedly living in a period of our history where the power and rights of the state to intrude into citizens’ lives have increased beyond all recognition, compared with the position 10, 15, 20 or 30 years ago. We are in serious danger of accepting as a norm what our forefathers would have regarded as an outrage. Although there are security considerations that we must balance, on the back of security we are in danger of creating a highly regulated state that is rather poor at bringing about behavioural changes in relation to the observance of the law. That is one of the big topics that we must face in the House, and I suspect it is one to which we will return over and over again. It would be helpful if we could reach a degree of consensus in all parts of the House on how to strike the balance, but I am pretty well convinced in my own mind that at present the balance is far too skewed towards the intrusive powers of the state and far away from the rights of the individual. Question put, That the clause be read a Second time:— The House proceeded to a Division—
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Mr. Deputy SpeakerOrder. May I ask the Serjeant to investigate the delay in the No Lobby?
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Mr. Deputy SpeakerConservative
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Order. May I ask the Serjeant to investigate the delay in the No Lobby?
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Mr. Jeremy BrowneI beg to move amendment No. 63, in page 1, line 6, after ‘satisfied’, insert ‘beyond reasonable doubt’.
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Mr. Jeremy BrowneLiberal Democrat
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I beg to move amendment No. 63, in page 1, line 6, after ‘satisfied’, insert ‘beyond reasonable doubt’.
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Mr. Deputy SpeakerWith this it will be convenient to discuss the following amendments: No. 75, in line 6, after ‘satisfied’, insert ‘so t…
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Mr. Deputy SpeakerConservative
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With this it will be convenient to discuss the following amendments: No. 75, in line 6, after ‘satisfied’, insert ‘so that it is sure’. No. 65, in page 2, line 3, at end insert— ‘(c) it is informed by the Director of Public Prosecutions— (i) that there is no reasonable prospect of a successful prosecution of the individual in respect of the involvement in serious crime in question, or (ii) that such a prosecution would not be in the public interest.’. No. 64, in line 5, after ‘satisfied’, insert ‘beyond reasonable doubt’. No. 76, in line 5, after ‘satisfied’, insert ‘so that it is sure’. No. 66, in line 9, at end insert— ‘(c) it is informed by the Director of Public Prosecutions— (i) that there is no reasonable prospect of a successful prosecution of the individual in respect of the involvement in serious crime in question, or (ii) that such a prosecution would not be in the public interest.’. No. 77, in line 13, leave out ‘appropriate’ and insert ‘necessary and proportionate’. No. 67, in clause 2, line 38, leave out from ‘1’ to end of line 41. No. 68, in page 3, leave out line 20. No. 69, in line 23, leave out from ‘Wales’ to end of line 27. No. 70, in clause 3, line 47, leave out from ‘1’ to end of line 3 on page 4. No. 71, in page 4, leave out line 27. No. 72, in line 30, leave out from ‘Ireland’ to end of line 34. No. 73, in clause 4, page 5, line 5, leave out from ‘must’ to end of line 9 and insert ‘determine that the defendant acted unreasonably in the circumstances’. No. 74, in line 13, leave out from ‘must’ to end of line 17 and insert ‘determine that the defendant acted unreasonably in the circumstances’. No. 78, in clause 19, page 12, line 34, leave out ‘appropriate’ and insert ‘necessary and proportionate’. Government amendments Nos. 1 to 10, 84, 12 and 13. No. 79, in clause 35, page 25, line 20, leave out subsection (2). No. 80, in line 25, leave out from ‘is’ to ‘that’ in line 27. Government amendment Nos. 16 and 17. No. 81, in schedule 1, page 56, line 27, at end insert— ‘Computer Crime 13A An offence under section 1 of the Computer Misuse Act 1990 (unauthorised access to computer material). 13B An offence under section 2 of the Computer Misuse Act 1990 (unauthorised access with intent to commit or facilitate the commission of further offences). 13C An offence under section 3 of the Computer Misuse Act 1990 (unauthorised modification of computer material).’. No. 82, in page 60, line 31, at end insert— ‘Computer Crime 25A An offence under section 1 of the Computer Misuse Act 1990 (unauthorised access to computer material). 25B An offence under section 2 of the Computer Misuse Act 1990 (unauthorised access with intent to commit or facilitate the commission of further offences). 25C An offence under section 3 of the Computer Misuse Act 1990 (unauthorised modification of computer material).’. Government amendments Nos. 22 and 47.
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Mr. BrowneMost hon. Members, particularly those who sat through our extended periods in Committee, will accept that amendment No.…
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Mr. BrowneLiberal Democrat
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Most hon. Members, particularly those who sat through our extended periods in Committee, will accept that amendment No. 63 relates to the crux of this legislation—the principal reason why my party and I are uncomfortable with the Government’s proposals. The amendment has a simple purpose: to put the criminal standard of proof into the Bill. At the moment, the Government insist that serious crime prevention orders are a preventive, not punitive, measure and that therefore the civil standard of proof is appropriate. However, I remind hon. Members that the sanctions for those who fall foul of the proposals are severe indeed: people’s travel can be restricted, within the United Kingdom as well as abroad, and they may also be restricted in where they can work, live and visit. Short of sending people to prison, pretty much every imaginable restriction on the liberty of the citizen may be involved, and if people fail to comply with the orders, the sanctions extend as far as a prison sentence. In some cases somebody contravening the orders might go to prison despite never having committed a criminal offence or having been found guilty according to a criminal standard of proof. Furthermore, the orders can apply for anything up to five years—indeed, they are more draconian than that, because the five-year period is indefinitely renewable. Somebody could have a most severe restriction on their liberty for the remainder of their life without having committed a criminal offence or having been found guilty by any criminal standard of proof. The amendment addresses head-on that lack of legal certainty. Baroness Scotland said in the other place: “the court will look at the civil standard as a sliding scale, with the likely standard of proof for these orders being very close to the criminal standard of ‘beyond reasonable doubt’ ”.—[Official Report, House of Lords, 7 February 2007; Vol. 689, c. 729.] Let us stop for a moment, as we did in Committee, and consider that statement to ascertain whether it is satisfactory in respect of the protection of the citizen’s liberty. The Baroness mentioned a “sliding scale”; that will ring alarm bells with some people straight away. She talked about the “likely”—another qualification—standard of proof being “very close” to the criminal standard. Everyone will note that she did not mention “the criminal standard”, merely one “very close” to it. The Under-Secretary of State for the Home Department, the hon. Member for Gedling (Mr. Coaker) said during earlier deliberations on the Bill: “On clause 1(1)(a), we would expect the standard of proof to be virtually identical to that for criminal proceedings”––[Official Report, Serious Crime Public Bill Committee, 26 June 2007; c. 19.] Again, the caveat is entered: not identical, but “virtually identical”. On Second Reading, the Minister for Security, Counter-Terrorism, Crime and Policing said: “we expect that the standard of proof required in relation to the question of whether a person has been involved in serious crime will be the same as in criminal cases”—[Official Report, 12 June 2007; Vol. 461, c. 664.] However, that standard has not been put into the Bill; at present, according to the verbal guidance given by most Ministers, we are some way short of the criminal standard of proof. We do not know how far short we are, and it is difficult to know how the legislation will be enacted in practice, but we do know, or appear to know, that the criminal standard of proof will not have to be met for people to be subject to the restrictions on liberty and sanctions in the Bill. To broaden my point, I shall briefly go through the scope of some of those sanctions. First, as I have mentioned, they are very wide ranging; we are not talking about a slap on the wrist. They have been called “gangster ASBOs” in tabloid parlance, although the punishment that they carry has a far greater effect than ASBOs themselves. Secondly, the sanctions are too easy as an alternative to prosecution. No one is more in favour than I am of trying to arrest and detain someone involved in crime—drawing the evidence together and putting it before a court with a jury of the person’s peers. If such a person can be proved to be guilty, a criminal prosecution should be sought. However, I feel far more uncomfortable with the Bill’s underlying assumption: that we essentially know who is breaking the law, but we do not have enough evidence to prove it, so we will make legislation that means that we do not have to come up with such evidence, because we can restrict those people’s liberty severely without needing to prove that they have done anything wrong. If anything, the opposite to the norm is often the case: the accused person has to demonstrate that they have not done anything wrong, rather than the other way around. A person need never have committed a crime to fall foul of the Bill, and in my party we do not regard that as a sufficient safeguard. The amendment gets to the absolute essence of the legislation, and I am keen not only to speak to it but press it to a Division so that we can try once again to put a criminal standard of proof into the Bill. I urge the Government to consider that point seriously.
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James BrokenshireThe Government have sought to clarify their position on the standard of proof to be applied in considering serious crim…
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James BrokenshireConservative
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The Government have sought to clarify their position on the standard of proof to be applied in considering serious crime prevention orders, but the wording of the Bill rather muddies the waters, which is why further clarity is necessary. The starting point for the standard of proof that is to be applied in deciding whether a person has been involved in serious crime is the Government’s Green Paper, “New powers against organised and financial crime”, which was published in July 2006. Paragraph 3.1 states: “The courts would be able to impose an order if they believe on the balance of probability that the subject Has acted in a way which facilitated or was likely to facilitate the commissioning of serious crime That the terms of the order are necessary and proportionate to prevent such harms in future.” It adds at paragraph 3.4: “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.” Clauses 35(2) and 36(2) are incorporated in the Bill precisely to give effect to that stated intention, as they make it clear that the standard of proof to be applied by the High Court and the Crown court is the civil standard of proof—in other words, the balance of probabilities test, or, in simple language, “Was it more likely than not?” However, the Government have said that despite the language used in the Bill, things have moved on, and they would expect the House of Lords judgment in the case of McCann, which related to antisocial behaviour orders, to apply to serious crime prevention orders, with the effect that the aforementioned sliding scale would be adopted, incorporating something close to the criminal burden of proof. As the Minister said in Committee, “For clarity, let me say that we expect that, with respect to clause 1(1)(a), the standard of proof, as laid out in the McCann judgment, would be virtually identical to the criminal standard of proof.” He added that “as far as the Government are concerned, the judgment in McCann in the House of Lords will inform the practice when it comes to the implementation of serious crime prevention orders.”––[Official Report, Serious Crime Public Bill Committee, 26 June 2007; c. 17-18.] So the expectation is that the McCann judgment would apply or that it would “inform the practice”. What has not been said is that that will be the practice. That is why I remain of the view that it is important, for the sake of certainty and clarity, to avoid the need for case law, and for interpretation to make this relatively simple issue clear in the Bill by way of the amendments.
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Mr. John Gummer (Suffolk, Coastal) (Con)Does my hon. Friend agree that when something like this is not made clear, it means either that the Government have not…
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Mr. John Gummer (Suffolk, Coastal) (Con)Conservative
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Does my hon. Friend agree that when something like this is not made clear, it means either that the Government have not made up their own mind about what they want or that they do not want it to be clear? In the end, the judgment is based not on the Minister’s words but on the words in the Bill. I am worried that we are instigating a procedure that is justifiable only on the basis of the normal criminal measurement of guilt, and pretending that it is almost that although it is actually something much less.
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James BrokenshireMy right hon. Friend makes an extremely powerful and effective point. It is extremely strange that this simple and narr…
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James BrokenshireConservative
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My right hon. Friend makes an extremely powerful and effective point. It is extremely strange that this simple and narrow point has not been taken on board in the language of the Bill. As the Minister will see from the amendments, it does not require a huge amount of drafting to clarify the burden of proof required to demonstrate that somebody has been engaged in or involved in serious crime. One must therefore question why there is such reluctance to take that on board and to make the changes that we believe are necessary. We think it appropriate for the situation to be made clear in the Bill, and our amendments Nos. 75, 76, 79 and 80 would give effect to that. The Government have said throughout the passage of the Bill that the orders in part 1 are intended to be a preventive civil tool rather than a punishment. Indeed, as we have already discussed, that approach is essential to compliance with the European convention on human rights. There is little doubt, however, that these orders could be extremely wide ranging in nature and scope and be quite draconian. That point has been rehearsed on many previous occasions on Second Reading and in Committee, and I do not intend to delay the House unduly with it. However, given the need to make it clear that the powers should be used in a preventive way, it is important that this House states that the terms of the order should be “necessary and proportionate” in order to prevent the harm of serious crime. This is not about questioning the integrity of the court but about providing a clear statement of purpose which should aid compliance with article 6 of the ECHR.
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Mr. CoakerI am glad that the hon. Gentleman added that rider. He must have suddenly realised, when he said that he hoped that the…
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Mr. CoakerLabour
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I am glad that the hon. Gentleman added that rider. He must have suddenly realised, when he said that he hoped that the orders were proportionate, that he was suggesting by implication that the High Court—which is, as he knows, a public authority for the purposes of the Human Rights Act 1998—would be acting in a disproportionate way.
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James BrokenshireBy using the word “appropriate”, the Minister is suggesting that the High Court would operate in an inappropriate way;…
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James BrokenshireConservative
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By using the word “appropriate”, the Minister is suggesting that the High Court would operate in an inappropriate way; otherwise, he would not have put the word in the Bill in the first place. I do not accept his argument. For the purposes of clarity, “necessary and proportionate” sums up very clearly what we believe should be stated in the Bill. There remains a genuine concern that the orders may be used in a way that subverts or replaces the existing criminal process. Paragraph 3.2 of the Green Paper notes: “As with other disposals available to agencies like the FSA, those deciding whether to prosecute or pursue a civil order will need to decide which disposal is most likely to reduce harm in the long run, while taking due account of the public interest in prosecutions.” It is therefore envisaged that orders may be sought as an alternative to a prosecution. This is a road down which we must proceed with caution. Civil orders can have a part to play in combating crime, although the way in which the Government have introduced and implemented such orders in the past hardly makes the case well. The Minister has said that only about 30 such orders are intended to be issued annually and that the main target will be the Mr. Bigs, although the Green Paper talks about orders being applied to “individuals on the fringes” and “peripheral players”. The point is made that if someone is caught within the ambit of the Bill, clause 4 provides a reverse burden of proof for them to show that they have acted reasonably. The problem is that we do not know how this new power will be applied in practice. Even at this late stage, if the Government are not prepared to accept the amendments, I urge them to provide for a formal mechanism to monitor and renew the orders so that they do not start to be seen as an easy option when a formal criminal prosecution could and should be made to deal with a serious criminal. Then there are the crimes that are deemed to be serious in the first place in order for an serious crime prevention order to be considered. There is a need for certainty and clarity, and it is right that the offences regarded as serious should be stated in the Bill rather than left open for further interpretation. It seems astonishing, given the increasing threat, its interrelationship with most other criminal activity, and the level of organisation and technological sophistication that now lies behind it, that computer crime is not considered a serious crime and stated in schedule 1. That appears to be a glaring omission when one considers that fishing for salmon, trout or freshwater fish with prohibited instruments is considered under the Salmon and Freshwater Fisheries Act 1975 to be a serious offence. That implies that the Government do not regard computer-enabled cybercrime as serious or a priority. Such crime hurts more and more people each day, with some surveys suggesting that the public feel more at risk of being the victim of an online crime than they do of any of the other, more high-profile offences. A survey by the Government-sponsored Get Safe Online website asking people of which of a series of crimes they felt most at risk in their everyday lives showed that 21 per cent. identified internet crime—higher than burglary at 16 per cent., mugging at 11 per cent. or car theft at 8 per cent. Online crime is growing fast. According to Get Safe Online, 10 per cent. of internet users were the victims of an online fraud in 2006; the average loss for each individual was £875. It is not just a matter of fraud, but of trojans, viruses and other malware that damage people’s computers, as well as misusing them for botnet attacks on others. There is also identity fraud, where individuals’ personal details and credit card information are harvested by clandestine means and traded as currency among criminal gangs. Such crime undermines confidence in the use of the internet as a trading platform and its role as an effective means of communicating information. The Government are not immune from attack. The tax credits website was shut after fraudsters used security lapses to make bogus claims and steal the identities of 13,000 staff at the Department for Work and Pensions and Network Rail. It is unlikely to reopen before next year. Business has been hit hard. During the past year, 84 per cent. of large businesses are thought to have suffered a malicious security incident. The Metropolitan police estimate the average losses to a large company of an e-crime attack at anywhere between £65,000 and £130,000, rising to £1 million for a large corporate entity. Against such a background, it seems astonishing that computer-enabled crime should not be considered as serious under the Bill. On Second Reading, the Minister for Security, Counter-Terrorism, Crime and Policing said: “This Bill is designed to fill the gaps and lacunae that exist in the law, and its scope does not extend to every crime that, however remotely, could be construed as serious. As I said earlier, the Bill and schedules have been devised precisely to fill what we perceive to be holes in the existing legislation covering serious and organised crime.”—[Official Report, 12 June 2007; Vol. 461, c. 663.] I would assert that not including cybercrime in the Bill creates a very big hole, as such crime is serious, organised and poses a significant threat to an increasing number of people, and it should be treated as such. Accordingly, amendments Nos. 81 and 82 would improve the Bill by inserting various offences under the Computer Misuse Act 1990 into schedule 1 to send a clear message to those intent on causing us harm that my party treats the issue extremely seriously, even if the Government do not. I will listen carefully to how the Minister responds and to his explanation of the Government’s position on this issue. It is so serious that if we do not receive appropriate assurances, the matter should be pressed to a Division. The changes proposed to the serious crime prevention orders by the Government appear largely technical in nature, and do not address the fundamental issues highlighted by us and by the hon. Member for Taunton (Mr. Browne), except for Government amendment No. 3, which deals with the appeal process. That amendment effectively clarifies the appeals process through the criminal division of the Court of Appeal and on to the supreme court, and adds language to the provisions. However, the Government have reserved an order-making power under what will be inserted as clause 24(9) and it would be helpful if the Minister clarified the use of the power, the intention behind it and how it would operate and interact with the new appeal process. We will listen carefully to the Minister’s response, but there are a number of serious issues relating to the clarity, confirmation and scope of serious crime prevention orders. Even at this late stage, I hope that the Minister will listen carefully to the significant reservations that have been raised tonight and previously, both inside and outside the House, and insert some quite simple measures to give the clarity and certainty that so many people want.
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Mr. GummerI shall apply myself to the specific issue of certainty and clarity. When the Minister said that the tests would be vir…
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Mr. GummerConservative
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I shall apply myself to the specific issue of certainty and clarity. When the Minister said that the tests would be virtually the same, it raised an important question. If they are virtually the same, why can they not be the same? It is no more difficult than that. I raise that question particularly because other Ministers have often suggested that they are the same. Similarly, in the discussion we had a few moments ago, all the words that I used are used by those who want greater power than they think the House would give them. I want to explain to the Minister why I think that the issue is very serious. It has always been true that in this country the rights and freedoms of the individual have been restricted for the very best of intentions. It has always been for the highest purposes, and it has always been argued that it has to be done because of the threat of this, that or the other. The hon. Member for Taunton (Mr. Browne) found that he had to say that he was not in favour of organised crime before he was allowed to go on to say why the issue he raised was so important. I hope that I do not have to say that, but we are almost put into that position, and we have been again and again. I hope that the Minister understands why it is necessary for him to be very precise. During the past 10 years, there has been a succession of Bills in which the freedom of the individual has come second by a long way in the Government’s approach to such issues. Again and again, whether about juries, the burden of proof and so on, the Government are on the side of authoritarianism. It is sad for me to find, once again, that I am arguing from a position that must be to the left of the Government’s. It is increasingly confusing to people out there that the Government take views that do not start from the presumption that we have to defend people’s rights. The right that we are considering is crucial.
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Mr. Jeremy BrowneDoes that not show that divisions in politics nowadays are often not between left and right but between libertarians su…
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Mr. Jeremy BrowneLiberal Democrat
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Does that not show that divisions in politics nowadays are often not between left and right but between libertarians such as the right hon. Gentleman and me, and authoritarians?
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Mr. GummerI was trying to use good, old-fashioned language so as not to upset the Under-Secretary too much, but the hon. Gentlema…
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Mr. GummerConservative
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I was trying to use good, old-fashioned language so as not to upset the Under-Secretary too much, but the hon. Gentleman may be right. The Government are the most authoritarian Administration that Britain has ever had. No historian would question that. The hon. Member for Taunton hinted at the importance of the right that we are considering. If we and the Under-Secretary are confused, the innocent person who will inevitably be caught by the measure—I have some interest in that problem—will also be confused. At no point in the process will he or she know the protections that they have, the standard of proof that has to be produced and where the measure stands between the civil and criminal standards of proof. At different times, requirements have moved elegantly between the standards, from “virtually the same” to completely different. The required standard is likely to be informed by the decision in the McCann case.
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Mr. CoakerIn the time available, I will go through the various amendments. However, I do not propose to go through them in fine d…
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Mr. CoakerLabour
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In the time available, I will go through the various amendments. However, I do not propose to go through them in fine detail, not least because, as hon. Members who are present know, we have already debated them in great detail in Committee. They were also debated in equal detail in another place. However, I will first set out the Government’s response to the amendments and, secondly, explain the need for the amendments that we tabled. One of the key issues that we discussed in some detail during the Bill’s passage is the appropriate standard of proof that should apply to the orders. Amendments Nos. 63, 64, 75 and 76 all touch on that. We debated those amendments at length in Committee, but I accept that hon. Members feel that the point is central to the debate. However, I hope that they will forgive me when I say that I have not changed my mind since then, and that the same arguments for not accepting the amendments continue to apply. I am afraid that I must resist them. Clause 1 provides an effective and appropriate test to be met by the applicant authority before an order will be granted by the High Court. The test will not be easy to fulfil—and it should not be. It balances the need to protect the rights of the individual with that to protect the public from the harm that some individuals cause. That is the point to which the right hon. Member for Suffolk, Coastal (Mr. Gummer) alluded. There is always a debate about balance and where to draw the line. It is a perennial debate, which has gone on for centuries and will doubtless continue for centuries. They are not about punishing past actions, but preventing future engagement in activities that cause harm to society. For that reason, clause 1 sets out a two-part test that must be met before an order is made by the High Court. The first part of the test is a question of fact: has the proposed subject of the order been involved in serious crime in the past? The second part is a matter of judgment for the court: does it have reasonable grounds for believing that the order will prevent future harm caused by serious crime? Amendments Nos. 63 and 64 would change the required standard of proof to be discharged in relation to the first limb of the test in clause 1 from the civil standard to the criminal standard of “beyond reasonable doubt”. The appropriate standard of proof for the orders was debated at great length in Committee, as I have said, and in another place. As can be seen from the Hansard report, there was some initial confusion over what having the civil standard of proof would mean in practice. I tried to clarify that in Committee, but I will attempt to do so again. The civil standard of proof is a flexible one—I shall come to the right hon. Gentleman’s point in a moment. In the case of McCann, the House of Lords decided that for antisocial behaviour orders the standard of proof that the court should apply when deciding whether a person had acted in an antisocial manner should be the same as the criminal standard—that is, beyond reasonable doubt. To be clear, Lord Steyn said in that case: “Lord Bingham of Cornhill has observed that the heightened civil standard and the criminal standard are”— I emphasise the next word— “virtually indistinguishable. I do not disagree with any of these views. But in my view pragmatism dictates that the task of the magistrates should be made more straightforward by ruling that they must in all cases under section 1 apply the criminal standard.” We expect similar principles to be applied in relation to orders. We expect the standard of proof in relation to whether a person has been involved in serious crime to be beyond reasonable doubt. The orders are civil orders, so it is right that the civil standard of proof should apply. As a result, I must resist the amendment.
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James BrokenshireThe Minister has said that he expects that that standard will apply. Can he state categorically that it is the Governme…
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James BrokenshireConservative
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The Minister has said that he expects that that standard will apply. Can he state categorically that it is the Government’s intention that that standard should apply? That is an important but distinct point on which we would appreciate some certainty.
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Mr. CoakerTo put beyond reasonable doubt what I am saying, the civil court, in making its judgment about such matters, should tak…
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Mr. CoakerLabour
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To put beyond reasonable doubt what I am saying, the civil court, in making its judgment about such matters, should take into account the case of McCann in the House of Lords. I am not a lawyer, but every time I raise the issue everybody says to me, “Well you ought to read the House of Lords judgment on this.” That is what I am told by barristers and lawyers everywhere—“Read the House of Lords judgment. The House of Lords is the highest court in the land. It will inform the decisions that courts make.” That is exactly what I am doing. I am saying that the courts of the land—the civil courts in this case—should apply the case of McCann in determining what standard of proof they should apply when considering serious crime prevention orders. No doubt much more eminent lawyers than me—since I am not one anyway—use the words “virtually indistinguishable”. If those words can be used by the House of Lords, which is the highest court of the land, it seems appropriate that I, too, should use the word “virtually”, which is what I have done. If it is the intention of the hon. Member for Taunton to make the applicable standard “beyond reasonable doubt”, the House of Lords has already done that, so the amendment is unnecessary and I hope that he will feel able to withdraw it. Amendments Nos. 75 and 76 appear to go to the same end, so I hope that the hon. Member for Hornchurch (James Brokenshire) will not feel the need to press them. On amendments Nos. 65 and 66, let me make clear one important point. The Government are dedicated to ensuring that those who commit serious crimes are quickly detected, effectively brought to trial and punished appropriately. However, amendments Nos. 65 and 66 misunderstand the role that the orders can play. There will not be a direct choice for the Director of Public Prosecutions—or any of the other applicant authorities, for that matter—between pursuing a prosecution, which is punitive, and seeking an order, which is preventive. Orders can be sought independently of, before, alongside or after a prosecution. They will be sought at whatever point in time there is a harm that can be best and most effectively prevented by the imposition of reasonable and proportionate conditions. That does not affect the primacy of prosecution for those who have committed serious crimes. Indeed, one of the reasons we have chosen the applicant authorities that we have, in this part of the Bill, is precisely that they are the best placed to make an assessment of the most appropriate course of action in any particular set of circumstances. For those reasons, I must resist the amendments. Amendments Nos. 77 and 78 seek to amend clause 1(3), and the similar provision for orders in the Crown court in clause 19, in order to change the word “appropriate” to the term “necessary and proportionate”. The provisions set out the test that the court must apply when deciding on the terms to include in an order. Placing a requirement on the court to act proportionately is unnecessary because it simply reflects a principle by which the court will already abide in making the orders. There is no need to tell the High Court in legislation to be proportionate. As for a requirement for the terms of an order to be necessary, we believe that we have set the standard in clause 1(3), and later in clause 19(5), at the right level. That is because we have struck the right balance in requiring the test to be sufficiently tough to ensure that an order will be proportionate but not so tough that it can never be met. For those reasons, I am afraid that I must resist the amendments. The hon. Member for Taunton (Mr. Browne) has tabled amendments Nos. 67 and 72. They cover subjects that we debated at some length in Committee, and I have not changed my mind since that debate. We have provided a schedule to show the large majority of the offences in relation to which the use of these orders would be appropriate. Also, within the framework of the schedule, we have provided a discretion for the High Court—or, as the case may be, the Crown court—to treat an offence as serious if, in the circumstances of the case before it, which we cannot know or foresee, it considers the offence to be serious enough to be treated as if it were specified in the schedule. It is important that we do not fetter the discretion of the courts to adapt to the constant changes around them by looking at the context of an offence and making a fully informed and reasoned decision whether it would be appropriate for that offence to attract an order. Let me give the House an example of why this discretion is necessary. We do not consider it appropriate to include in the schedule offences against the person, such as assault or murder, because they are not suitable for attracting an order in all circumstances. So, I am sure that we can all agree that, when a person assaults another in a simple fight in a pub, these orders would be completely inappropriate. However, when someone has routinely used violence to intimidate and maintain a reign of terror in an area, he might be an appropriate candidate for an order, after serving his sentence, if there is evidence that an order would prevent such crimes from being committed again. It is the circumstances in which these types of offence are committed that determine whether or not an order is appropriate. The person best placed to make that decision will be the judge sitting in the High Court. On amendments Nos. 73 and 74, I would like to point out that, in drafting the Bill, we wanted to ensure that any actions of the proposed subject which were reasonable in the circumstances could not be used as the basis for an SCPO. So, for example, there is no doubt that an employee of PC World facilitates serious crime when he sells Mr. X a computer that Mr. X later uses to commit a massive fraud. Mr. X could not commit the crime without that computer. However, to say that the employee should be the subject of an SCPO for those actions would be ludicrous. As a result, we have clause 4(2)(a) and 4(3)(a), which mean that any action that the proposed subject can show is reasonable cannot form the basis for an SCPO. The intent behind the amendments seems to be to force the applicant authority instead to have to show that the actions were unreasonable.
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James BrokenshireIn that example of an employee, the Minister has said that it would be up to the employee to show that his actions were…
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James BrokenshireConservative
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In that example of an employee, the Minister has said that it would be up to the employee to show that his actions were reasonable. Does he accept that that would be a somewhat perverse burden in those circumstances, should an SCPO be sought against such an individual?
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Mr. CoakerI do not accept that, for the reasons that the hon. Gentleman knows. We have already debated that matter long and hard.…
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Mr. CoakerLabour
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I do not accept that, for the reasons that the hon. Gentleman knows. We have already debated that matter long and hard. As I have said, the intent behind the amendments seems to be to force the applicant authority to show that the actions were unreasonable. Whether that is correct depends on one question: who is best placed to know the circumstances surrounding those actions and whether they are reasonable? The answer must surely be the subject. It is important to remember, though, that for this even to be an issue, the applicant authority will already have had to adduce evidence to show that the actions of the proposed subject facilitated, or were likely to facilitate, serious crime. Without having proved the existence of the element of facilitation, the question of whether the actions were reasonable would not arise. So, the proposed subject will not be asked to prove reasonableness in a vacuum; rather, they will need to show that the actions that facilitated the serious crime were reasonable. If I asked my constituents whether it was acceptable to ask someone who has been proven to have facilitated crimes such as drug trafficking or people smuggling to show that their actions were reasonable, I am confident that their answer would be the same as mine. I continue to resist the amendments for those reasons and hope that they will be not be pressed. We have already discussed at some length the civil nature of the orders and I do not propose to go into any further detail now.
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Mr. Jeremy BrowneI am grateful to the Minister for his customary courtesy in dealing with all aspects of the Bill. However, I wish to pr…
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Mr. Jeremy BrowneLiberal Democrat
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I am grateful to the Minister for his customary courtesy in dealing with all aspects of the Bill. However, I wish to press the amendment to a Division. Question put, That the amendment be made:—
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Mr. McNultyI beg to move, That the Bill be now read the Third time. This Bill has been debated at some length, both in this House…
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Mr. McNultyLabour
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I beg to move, That the Bill be now read the Third time. This Bill has been debated at some length, both in this House and the other place, which has culminated in us debating on Report a measure that will provide important tools in the fight against serious crime. I now commend the Bill to the House for its Third Reading. First and foremost, I wish to thank the Under-Secretary of State for the Home Department, my hon. Friend the Member for Gedling (Mr. Coaker), for doing all the work on the Bill. I am grateful for that. I also wish to thank Members on both sides of the House for the constructive way in which they have approached the vast majority of the Bill, as we have seen in our deliberations today. I also wish to thank the civil service team that worked diligently and professionally on the Bill, with great spirit and sharp focus. Serious crime represents one of the greatest threats to the security of this country and we all know we must work together to combat those who are determined to make their fortune from crimes such as trafficking in drugs, smuggling people or laundering money. We agree on all those issues, but we may disagree on the best way to achieve our ends. That is only right and proper, and the process of detailed scrutiny has given us a Bill that not only will achieve a great deal, but is in far better shape at the end of the parliamentary process than it was at the beginning. Among other things the Bill provides law enforcement with an effective new tool to prevent the harm caused by serious crime before it happens: the serious crime prevention order, which is carefully targeted at inhibiting criminal activity, but which is put in place by the courts only where it is reasonable and proportionate to do so. The measure delivers a strengthening of the provisions that allow us to seize the assets of serious criminals, which will help us to deliver the target of doubling confiscation of criminal assets to £250 million per year by 2010, including merging the Assets Recovery Agency into the Serious Organised Crime Agency to give further improvements in efficiency. The Bill improves the way in which we are able to use data, across the public and private sectors, to prevent and detect fraud. It addresses the gap in the criminal law identified by the Law Commission concerning incitement. It makes the surveillance powers on which we have just deliberated available to Her Majesty’s Revenue and Customs, and enables them to be used for investigations into serious crime in relation to ex-Customs and Excise matters; they will also be available in relation to investigations into serious crime concerning ex-Inland Revenue matters.
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Mr. Philip Hollobone (Kettering) (Con)The Minister mentioned incitement. The Bill gets rid of the common law offence of incitement and replaces it with new p…
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Mr. Philip Hollobone (Kettering) (Con)Conservative
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The Minister mentioned incitement. The Bill gets rid of the common law offence of incitement and replaces it with new provisions. There is growing concern across the country, and on both sides of the House, about incitement in lyrics, especially of rap songs, which are particularly offensive to minority groups. Is the Minister’s intention, through the Bill, that there should be prosecutions to bring the offensive nature of many rap lyrics under control?
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Mr. McNultyThe hon. Gentleman raises a fair point. If the activities to which he referred were undertaken in pursuit of serious cr…
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Mr. McNultyLabour
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The hon. Gentleman raises a fair point. If the activities to which he referred were undertaken in pursuit of serious crime, the answer is yes. I do not demur from the notion that we need to look at other aspects of the broader issue of incitement. The incitement aspects of the Bill merely reflect the Law Commission’s findings. The hon. Gentleman makes an entirely fair point and it is worthy of debate and discussion—but not now. On Report, we dwelt on the HMRC aspects of surveillance powers, especially intrusive surveillance powers—not least at the behest of the hon. Member for Hornchurch (James Brokenshire). However, his Front-Bench colleague, the hon. Member for Beaconsfield (Mr. Grieve) raised broader issues relating to surveillance powers under the Regulation of Investigatory Powers Act 2000 and to communications data. I have no doubt we shall return to those issues; that debate is still to be had. The hon. Gentleman was entirely wrong in his characterisation of the debate, but no doubt we shall hold it at some point. As the Under-Secretary promised, there was a useful discussion on Report on the stop-and-search proposals that originated in the Lords. The Government’s proposals put us in a far more reasonable place. The new clause proposed by the hon. Member for Hornchurch was flawed in some ways, but the House has done the country a service in supporting the Government’s proposals, while the Government have done the House a service by listening to voices from the Opposition and others. The stop-and-search provisions now offer a position of greater clarity and are better than they were before. I thank the House for that, especially for not dividing on an issue that, as my hon. Friend the Under-Secretary said, could be one on which colleagues were tempted to showboat and to play to the gallery for tabloid headlines. I am grateful that did not happen, and the stop-and-search powers are in a better place than before the Bill began its progress. In that spirit, I welcome the scrutiny given to the Bill. As a result, and through continued consultation with stakeholders, we have tabled amendments that meet some of the concerns expressed in the House and in another place—not all of them, I freely concede; otherwise, why would we need an Opposition? The amendments improve the way in which the Bill will deliver its objective of tackling serious crime in an effective but balanced way—an endeavour where we are all united against those who commit serious crime, which we all want to drive down. This serious matter has been dealt with in Committee and in our debates today in a way that is to the credit of the House, and I commend the Bill to the House.
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James BrokenshireI thank my hon. Friends who served on the Committee and applied the scrutiny and the approach to which the Minister has…
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James BrokenshireConservative
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I thank my hon. Friends who served on the Committee and applied the scrutiny and the approach to which the Minister has alluded in seeking to highlight points in the Bill and to raise the concerns that rightly exist in relation to the operation of its provisions. I want to put on record my thanks to the Home Office officials for providing assistance, guidance and information and for responding to the questions that I asked them. I also want to put on record my thanks to the Under-Secretary for his courtesy in dealing with the points raised with him, even though we were unable to reach an agreement or find a resolution in relation to the points that have been highlighted. The essence of the debates on the Bill has been whether it will prevent serious crime from occurring. The key part has been the introduction of the serious crime prevention order—in essence, a new hybrid of an ASBO and a control order. However, as I have said today, given the experience of the way in which the Government have used civil remedies, we still have considerable questions about what difference the new order will make in practice. As we know, control orders have not been a full success, with a third of those subject to the apparently stringent conditions of the orders having absconded. ASBOs have been breached in record numbers, with the National Audit Office reporting that 55 per cent. are breached and some areas reporting breach rates as high as 70 per cent. Although the public may welcome measures, such as ASBOs, as an indication that something is being done, when examined more closely, that perception turns negative in respect of whether they stop antisocial behaviour, as they were supposed to do. The same questions apply to the serious crime prevention order. As Chief Superintendent Neil Wain, a borough commander on the Greater Manchester police force, notes in his recent book, “The ASBO: Wrong Turning, Dead End”, not only are ASBOs regularly breached, but they do not appear to control the behaviour of those subject to them. In addition, many of those on ASBOs were persistent criminals, and rather than controlling behaviour, the orders appeared to be more like post-conviction bail conditions, where the objective was breach and imprisonment. Again, that underlines some of the points that have been made this evening and the question whether serious crime prevention orders will be applied in such a way that amounts to a punishment, whatever assurances the Minister may have given most genuinely to the House this evening. That is why we believe strongly that there should be close scrutiny and examination of the practical use to which such orders may be put. But even if that were taken on board and we accept all the provisions on the wording of serious crime prevention orders, there is always the question of how they will be monitored. They will be only as good as the monitoring and enforcement that lies behind them. The appalling case of Garry Chester-Nash clearly highlights the possible weaknesses of the Government’s arguments if they are not prepared to follow through rigorously any order that is granted under part 1. Chester-Nash had a string of 30 convictions, including for several offences involving knives. He was identified as such a significant risk to the public that he was made subject to one of the most stringent ASBOs imposed, which banned him from all licensed premises in England, from carrying any weapon and from seeking employment that would bring him into contact with women. He was also subject to one of the highest levels of supervision by a multi-agency public protection arrangement. Yet, on his release from prison, when he failed to return to the bail hostel in east London, as he should have done, he travelled to Cornwall instead and stabbed to death 59-year-old Jean Bowditch in a bungled burglary on the bungalow that she was supposed to be cleaning. At his trial last year, he was sentenced to life imprisonment, with a recommended minimum sentence of 30 years. Such appalling cases continue to make me sceptical of the impact of serious crime prevention orders. Whatever may be written into the Bill, whatever the stated intentions and whatever the terms of the orders that may be granted, serious crime will not be prevented without rigorous supervision, monitoring and enforcement. If offenders are that much of a risk, the Government should not contemplate the use of such orders but use the full force of the criminal law and ensure that dangerous prisoners serve the full term of their sentence, rather than being let out early, subject to a serious crime prevention order or other order, however stringent its terms are supposed to be. In combating and preventing acts of serious violence and terrorism, we remain committed to the introduction of intercept evidence—a measure that is used successfully in other countries, and we believe that it should be applied here. In the Lords, the noble Lord Lloyd introduced an amendment that would have put such a measure into law, but the provision was removed by the Government, without them giving any assurance on that important subject at the Privy Council review. In Committee, the Under-Secretary said: “The Government are absolutely committed to a review of the use of intercept. We are also committed to using intercept as evidence if we can find a workable model and the necessary safeguards can be put in place. That is the Government’s position. It is clear, and there is no rowing back from it.”––[Official Report, Serious Crime Public Bill Committee, 26 June 2007; c.82.] There has been no rowing forward either, as far as we can see, and the Government made no reference to the issue tonight. No indication has been given of the likely timing of the outcome on the review’s findings, which we will obviously note with interest. That is an area in which we believe we could make a real difference in preventing crime and terrorism. We have made some progress in other areas. We welcome the Government’s concessions on a number of points raised by Opposition Members—the addition of firearms offences as serious crimes under the terms of the Bill; confirmation of the seniority of officials in Her Majesty’s Revenue and Customs who are able to use specific surveillance powers under the Bill; and the introduction of a code of practice to govern the data-sharing provisions for public authorities in part 3 of the Bill, together with the clarification that powers are to be used only for fraud prevention. On that last point, I remain of the view that it would have been more appropriate to give the Information Commissioner a specific right of audit and inspection in the Bill, but I acknowledge that a workable arrangement has been achieved through the code, and I am prepared to accept that. However, there is a bigger debate to be had about the function, powers and authority of the Information Commissioner in the context of his increasingly important role of making sure that data are supplied correctly, and that the interests of the private individual are protected. The House will need to return to that subject in the near future. We also welcome the reform of the law relating to inchoate offences in part 2 of the Bill. The reforms implement the recommendations of the Law Commission in a sensible, appropriate way. The Bill finally puts to rest the ill-fated Assets Recovery Agency, which was tasked with recovering assets from criminals using new powers of civil recovery, as well as powers of criminal confiscation and taxation. However, as the Public Accounts Committee recently reported, by December 2006 the agency had recovered assets of only £23 million; that is against an expenditure of £65 million. The Committee noted that “The Agency was set up, however, with insufficient preparatory work. There was no business case setting out the expectations for the Agency, resulting in unachievable delivery aims.” Both the National Audit Office and the Public Accounts Committee made recommendations, arising from the structural and operational failures of the Assets Recovery Agency, which led to the proposed transfer of its operations to the Serious Organised Crime Agency and the National Policing Improvement Agency under the Bill. It is essential that the recommendations be implemented by the successor organisations, and that the weaknesses are not merely transferred to the new bodies. It is important that assurances on the disclosure of information and on the performance of the assets recovery functions continue to be published in a format that allows comparison with the previous activities of the Assets Recovery Agency. We will be monitoring closely to ensure that a change in the structure leads to a step-change in performance. The Bill was a lost opportunity to ensure that stop and search powers were granted to police sergeants, as we today argued that they should be. That would offer the public greater protection from violent crime, and underline the importance of decisions made within communities affected by gun and knife crime. However, we accept that the amendments proposed by the Government on stop and search have some merit, although we question the extent of their impact. We will watch with interest to see whether stop and search turns out to be another area in which the Government subsequently decide to adopt Conservative thinking and make an important change to prevent crimes of serious violence. Despite our reservations about the serious crime prevention order, and the reservations of the Law Society, Liberty and others about whether the measure will be an effective, or indeed appropriate, remedy for reducing the harm caused by serious crime, we share the Government’s desire to bear down on serious organised crime, and we will not oppose the Bill’s Third Reading tonight. However, we will monitor closely whether the powers are applied in a way that is not intended by the House, to discover whether the Bill will simply join the long list of previous pieces of Home Office legislation introduced by the Government, promising much but delivering virtually nothing.
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21:09
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Mr. Jeremy BrowneI am grateful for a final opportunity to speak on the Bill. As is customary, I shall begin by thanking the many people…
Speaker
Mr. Jeremy BrowneLiberal Democrat
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I am grateful for a final opportunity to speak on the Bill. As is customary, I shall begin by thanking the many people involved in its inception. In the other place, where the Bill kicked off, my noble Friends Lords Dholakia, Goodhart, Burnett and Livsey all made substantial contributions to its progress. There were many Committee sittings, and the Conservatives even changed their spokesman. I pay tribute to the hon. Member for Arundel and South Downs (Nick Herbert), who got the ball rolling, and to the hon. Member for Hornchurch (James Brokenshire) who spoke wisely and at length this evening. I thank the Under-Secretary not only for the way in which he has approached the substance of the Bill but for his general courtesy and willingness to engage with Opposition Members, as well as his readiness to make officials available to add clarity to our conversations. He has made a genuine effort, and other Ministers could learn from his etiquette and decency. The Bill has some merits. Like many Bills emanating from the Department, it is not an unequivocally good or bad Bill. There are things on which we agreed in Committee, and things on which we agreed this evening—most importantly, on stop-and-search powers. They are not the whole solution, as the Minister rightly said, but they are an important weapon against violent crime, as long as they are used with intelligence and discretion by the police. We regret that Lord Lloyd’s amendment on intercept evidence was struck out by the Government without any willingness on their part to replace it with an amendment more to their liking. The crux of the Bill, on which we voted half an hour ago—regrettably, we lost that vote—is part 1, and I shall briefly detain the House by summing up its seven inherent flaws. First, the sanctions in the Bill are unrestricted in their scope. There are some restrictions, but they are not exhaustive. We must remember that we are talking about serious sanctions—virtually everything short of imprisoning the individual concerned—such as restrictions on internal travel in the United Kingdom, on the buildings they can visit, and on the places where they can work, so their day-to-day business may be severely curtailed. Those sanctions can last up to five years—we tried to reduce that period in Committee, but we failed—but that period is not a maximum. It can be extended indefinitely, so it is within the scope of the Bill for extremely draconian restrictions to be placed on someone’s liberties, and for those restrictions to last their lifetime, without their having an opportunity to escape them, even if they are not convicted of a criminal offence. If they breach those restrictions, they could go to prison, despite their not having been convicted of a criminal offence. Secondly, serious crime prevention orders are too easy an alternative to prosecution. The underlying assumption in the mind of Ministers is that the enforcement agencies know who the perpetrators of many crimes are, but cannot find enough evidence to prosecute them. They have therefore decided to find a different way of penalising them, and we fear that it will be regarded as alternative to prosecution, although it is often in the public interest to pursue a prosecution. Thirdly, there is no definition in the Bill of what constitutes a serious offence. There is a list of serious offences, some of which were subject to ridicule throughout our debates. I have yet to find an official who can defend the serious offences relating to salmon fishing. I still have not heard a satisfactory explanation from the Minister about why he regards salmon fishing as such an appalling offence. I do not wish to diminish the significance of the offence for any salmon fishermen who may be following our deliberations, but most of my constituents would not put that in the same category as the other items on the list. Moreover, further items can be added, so it is not a definitive list. Fourthly, a person need never have committed a crime in order to be subject to the punishments outlined in the Bill. Restrictions could legitimately be placed on a person who had been convicted of an offence, gone to prison, left prison and re-entered a criminal world—perhaps the same one that got them into prison in the first place—but there is a distinction between such a person and someone who is restricted but has not committed a criminal offence. Fifthly, there is no requirement for a person even to be aware that their actions could have facilitated a crime. In this respect, there is a lack of clarity in the Bill. The Minister constantly refers to the Mr. Bigs of the criminal underworld, whose efforts will be severely restricted by the Bill, but every time we ask for individual examples, they seem to come down to taxi companies run by inoffensive, or potentially offensive, small-time middle men and women in the criminal world, who certainly are not in the category of the 30 most prominent Mr. Bigs in Britain’s underworld. A Bill that will almost certainly soon become an Act is not clear on that point. Sixthly, restrictions can be placed on a person who is not the subject of an order. Finally, a person is guilty until they prove themselves innocent. That will offend many in the House who are concerned that the burden of proof will be on the recipient of the serious crime prevention order, rather than on those who wish to penalise that person. We have made our views known throughout the passage of the Bill, including this evening. There is no point in our voting on Third Reading, as our views are clear to everybody who has followed the progress of our deliberations. The Government have been too cavalier with civil liberties, during the passage of the Bill and more generally. It was striking that this evening only one non-ministerial Labour MP chose to speak during the debate. Trial by jury and hundreds of years of slowly building up the liberties of the individual citizen should not be discarded lightly. The divide in British politics is less between left and right than between those of a libertarian disposition and those of an authoritarian disposition. In that debate, my party is in the former camp. I fear that the Government are far too often in the latter camp, and we will have to revisit these debates many more times in the future.
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21:20
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Mr. CoakerIt has come as some surprise not only to me but to all hon. Members—
Speaker
Mr. CoakerLabour
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It has come as some surprise not only to me but to all hon. Members—
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21:28
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Mr. CoakerWith the leave of the House, Mr. Deputy Speaker.
Speaker
Mr. CoakerLabour
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With the leave of the House, Mr. Deputy Speaker.
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21:28
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Mr. CoakerThank you, Mr. Deputy Speaker. With the leave of the House, I shall make a few remarks. I reciprocate the warm apprecia…
Speaker
Mr. CoakerLabour
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Thank you, Mr. Deputy Speaker. With the leave of the House, I shall make a few remarks. I reciprocate the warm appreciation that I received from my right hon. Friend the Minister for Security, Counter-Terrorism, Crime and Policing who, along with my right hon. Friend the Home Secretary and other Home Office Ministers, has assisted and advised me. I also thank the hon. Members for Hornchurch (James Brokenshire) and for Taunton (Mr. Browne) for their kind words. Finally, Mr. Deputy Speaker, I thank you for allowing me to say thank you to everyone. Question put and agreed to. Bill accordingly read the Third time, and passed, with amendments. DELEGATED LEGISLATION Motion made, and Question put forthwith, pursuant to Standing Order No. 118(6) (Delegated Legislation Committees), European Communities That the draft European Communities (Definition of Treaties) (Partnership and Cooperation Agreement) (Republic of Tajikistan) Order 2007, which was laid before this House on 10th July, be approved.—[Mr. Nicholas Brown.] Question agreed to. BUSINESS OF THE HOUSE Ordered, That, at the sitting on Tuesday 23rd October, the Speaker shall put the Questions necessary to dispose of proceedings on the Motion in the name of Mr Edward Leigh relating to Public Accounts not later than Ten o’clock or three hours after their commencement, whichever is the later; proceedings may continue, though opposed, after the moment of interruption; and Standing Order No. 41A (Deferred divisions) shall not apply. Ordered, That, at the sitting on Thursday 25th October, the Speaker shall put the Questions necessary to dispose of the Motions in the name of Ms Harriet Harman relating to:- (a) Modernisation of the House of Commons; (b) Modernisation of the House of Commons (Changes to Standing Orders); (c) Procedure; (d) Procedure (Changes to Standing Orders); and (e) European Standing Committees (Temporary Nomination) not later than Five o’clock; such Questions shall include the Questions on any Amendments selected by the Speaker which may then be moved; proceedings may continue after the moment of interruption; and Standing Order No. 41A (Deferred divisions) shall not apply.—[Mr. Nicholas Brown.]
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21:28
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EnactedSerious Crime Act 2007