Clause 6
Serious Crime Bill [Lords]
2:00 pm
Nick Herbert (Shadow Minister (Police Reform), Home Affairs; Arundel and South Downs, Conservative)
At the end of the previous sitting, I was discussing the amendments to clause 6 that are in the name of my right hon. and learned Friend the Member for Sleaford and North Hykeham. He expressed concern about the ambit of the prohibitions, restrictions and requirements that that the Bill will allow under serious crime prevention orders.
His amendments seek to address his specific concern that clause 6(3) does not set out the nature of such prohibitions, but provides only a non-exhaustive listof examples of prohibitions that can be made. The listis similar, although not identical, to the list of prohibitions and restrictions related to control orders, to which serious crime prevention orders are directly analogous. There are some significant differences, andI would like to ask the Minister about at least twoof those. It is important that we understand how comprehensive the prohibitions and restrictions might be before we permit any of them to go forward in an open-ended manner.
Section 1 of the Prevention of Terrorism Act 2005, which is entitled, “Power to make control orders”, contains some provisions similar to those in clause 6(3) of the Bill, as well as additional specific obligations that can be placed on an individual. They include requirements on an individual to
“allow himself to be photographed”
and to
“co-operate with specified arrangements for enabling his movements, communications or other activities to be monitored by electronic or other means”,
which permits tagging. There is also a requirement on the individual to “surrender his passport”.
Those three requirements of the 2005 Act, whichall relate to control orders, could be made underclause 6(3), because the list that it contains non-exhaustive. Unless those provisions were specifically ruled out, which I do not believe they have been, it will be possible to enforce not only the significant restrictions in clause 6(3), which are set out only as examples, but the additional ones specified under the control order legislation. We need to focus on how restrictive those conditions could be. Subsection (6) says that the restrictions may relate to private dwellings.
The Government clearly intend the measures to be very wide indeed. In the White Paper, “New Powers Against Organised and Financial Crime”, which preceded the Bill, the Government discussed the kind of conditions that could be included in serious crime prevention orders under the proposed legislation. They conceded:
“For a civil order not to be considered criminal, and thus attract the additional protections of article 6 ECHR, the conditions attached must be designed to prevent harm, not be punitive.”
My argument is that many of the conditions in the clause add up to potentially punitive measures.
As the Government then conceded, there is a difference in the way in which antisocial behaviour orders operate and how control orders and serious crime prevention orders work. The comparison has been made frequently. ASBO conditions are prohibitive and are not used to require certain courses of conduct. The paper noted that specifically and that, in relation to terrorist control orders, Parliament had chosen to specify in broad terms the conditions that could be imposed under the Prevention of Terrorism Act 2005 to which I have referred.
The conditions include requirements to “behave in certain ways”. They are requirements to do something; they are not only prohibitions. The paper said that that was
“an additional power we are keen should apply to these orders too.”
The sweep of the potential restrictions is immense. They will apply not only to people’s homes; they will not just prohibit people from doing things in the way in which the ASBO legislation works, but they will require people to do things. Let us consider the analogous powers of control orders. It is worth bearing in mind exactly the sort of thing that control orders have required people to do.
Let us consider the 18 people who were subjected to control orders in January this year to whom Lord Carlile’s report referred. All 18 are required to reside at a specific residence, 10 of whom are subject to curfews of between 12 and 14 hours a day. That is what the Government have attempted in their restrictions of people and their movements in respect of control orders. The legality of such measures remains to be seen. The courts have said that restrictions are likely to be unlawful under the convention. The case is currently subject to appeal, and I shall return to it in a minute.
I argue that curfewing and that sort of detention amounts not to a preventive condition, but to punishment. However, even if we put that aside and look at the remaining conditions that have been attached to control orders and which could be attached equally under the provisions in the non-exhaustive list, we can see that they are very tough. All 18 of the people subject to control orders must permit entry to their homes to police officers and persons authorised by the Secretary of State. Of those people, 16 have had to surrender their travel documents and must not leave the UK. I am sure that that provision would be permitted under clause 6(3)(f) because it has a specific requirement in relation to an individual’s travel.
More than half of the people subject to control orders have to wear an electronic monitoring tag and report each day to a monitoring company. They are subject to a restriction on communications equipment in their residence. They cannot maintain or use more than one bank account and must provide statementsof that account. They must provide the Home Office with details of their employment and one person has restrictions on the specific type of employment in which he can engage.
The last two conditions are particular relevant for the potential operation of serious crime prevention orders. Again, in their White Paper, the Government have been absolutely clear that they wish to employ such measures if serious crime prevention orders are to operate successfully, and state:
“Given the acquisitive nature of organised crime, it is particularly important to be clear that the court could impose particular restrictions on the subject’s financial dealings, including for example requiring them only to use notified financial instruments (credit cards, bank accounts) and restrictions on the amount of cash they are permitted to carry.
We are also keen to ensure the orders include a power either compulsorily to purchase businesses or property or otherwise to require individuals to divest ownership of certain possessions which have been used to facilitate serious crime.”
We are talking about two potential scenarios under which those immensely onerous conditions could be attached. One is the scenario to which the Minister referred this morning, which is when people have been convicted of serious crimes. The Bill would give the courts the power to impose orders alongside the conviction that would prevent them from engaging in criminal activity.
Let us put that on one side for a second and focus on the second category of people who could be subjectto those incredibly onerous conditions. Such people need not have committed any criminal offence. We understand that. As I pointed out before lunch, there is no necessity under this legislation for the courts to consider the alternative of prosecution. There is that legal necessity in relation to control orders and the Prevention of Terrorism Act. It is not written into this legislation. The Minister assures us that these measures are not intended as an alternative to prosecution, but the authorities are not required to surmount any hurdle—as they are in relation to control orders—which requires them, in association with the chief of police, to examine whether there is sufficient evidence to mount a prosecution.
Therefore, the individuals concerned may not have committed an offence. They may have engaged only in conduct that facilitated the offence. As we discussed this morning, that conduct might merely have been one of omission. The definition of serious offence, which they may be said to have engaged in, can be made by the court. It may be something that the individual was not even aware was an offence.