Clause 17
Serious Crime Bill [Lords]
10:45 am
James Brokenshire (Shadow Minister (Police Reform), Home Affairs; Hornchurch, Conservative)
I thank the Minister for that intervention, but football banning orders and the like have narrow terms of reference. However, I think he accepts that the intention is to provide a degree of scope and flexibility in order to reflect the various circumstances and factors involved in making orders to prevent serious offending.
I understand why the Minister argues as he does, but a balance has to be struck between flexibility and being able to ensure that an element of control can be brought to bear. That is why we suggest a one-year limit. I was drawing a parallel with the control order regime, and although I accept what the Minister said about distinguishing between the two, it is still appropriate to debate the matter. For instance, under the Prevention of Terrorism Act 2005 a non-derogating control order effectively lasts for 12 months, although it can then be renewed. We believe that a parallel can be drawn to ensure that if significant restrictions and restraints are put on a person, there should be at least a 12-month review to see whether those sorts of restrictions were still appropriate given their import and impact.
It is interesting to note that on Second Reading the Minister for Security, Counter Terrorism and Police, the hon. Member for Harrow, East (Mr. McNulty), said that the intent would be that a criminal prosecution would be brought if that was possible. I say to the Minister here that if we had this type of provision, with a 12-month restriction on the extent of this order, at the very least that would provide a mechanism for considering whether a prosecution could be brought at the expiration of that 12-month period or whether it was necessary to continue with a new 12-month order.
So we are not seeking to undermine or challenge the intent behind these provisions. We are trying to ensure that we have, first, an effective mechanism to deal with reviews and, secondly, proportionality in the orders that are granted.
Liberty also highlights the issue of uncertainty about the aspects of the orders that may have been granted and the terms of those orders. It said in its briefing paper:
“The experience of ASBOs and Control Orders reveals several risks about how SCPOs might operate in practice. In particular it suggests that the restrictions imposed on an Order may well be drafted in an uncertain manner; include standard restrictions rather than restrictions which are tailored to each case; and that there will be no regular review of the Order with the result that restrictions will stay in place which are no longer necessary or proportionate.”
Although I understand that it is open to someone to go back to court to seek a variation in the terms of the order, obviously that provision is drafted in a fairly restrictive way, in that the court must be satisfied that certain tests have been passed and that certain requirements apply. If an order was granted for 12 months, that would formally allow a 12-month review of the appropriateness of the terms of the order. Rather than an application by an individual being granted, a 12-month review would provide a mechanism to ensure the appropriateness, and in some ways the certainty, of the terms of the order that is being granted. That may be appropriate not only for the person who is subject to an order but for law enforcement, so that law enforcement officers can ask at the end of 12 months whether the conditions of the order are still applicable or whether they should be looking for something different. A 12-month provision would allow such an analysis to be undertaken, to establish whether the order was operating appropriately.