Clause 19
Serious Crime Bill [Lords]
12:15 pm
Douglas Hogg (Sleaford and North Hykeham, Conservative)
I shall make a number of specific points. Once again, we see an imbalance between the powers of the relevant applicant authority and the powers of the person who is the subject of the order. In the case of the relevant authority, there is no need for there to be any change of circumstance, whereas in the case of the subject of the order there is. I rather doubt whether the applicant authority will be making any applications to discharge the orders save as the result of some bargain made between the person who is the subject of the order and the applicant authority.
I can contemplate a deal being done between someone deemed to be a criminal who is already the subject of an order, and the applicant authority. The deal would be something like this: “If you give us information, we will go to the court and apply to discharge the order.” Whether that is a good thing or a bad thing depends on the transparency of the deal. I rather suspect that neither the court nor the rest of us would learn about the nature of the deal. While in some circumstances I might applaud the deal, I am by no means willing to say that I would do so in all circumstances.
Let me repeat what I said before in this Committee. Once public authorities are given power it is always abused. It is a fundamental law of public law. All power, once given to officials, is always at some stage or other abused. This Committee, as representative of the House as a whole, has to be very conscious of that.
I am aware, as I reminded myself of the grouping under clause 10, that we have already debated my amendment No. 115, which was intended to set out criteria as to the considerations which the subject of the order would have to establish in order to prove that the discharge order should be made. The problem about the clause as it is currently formulated is that there is no indication of what the applicant has to prove, other than a change in circumstances. Once a change in circumstances has been established, it is left at large as to the criteria that the courts should adopt. I personally find that rather undesirable. I should have thought it highly desirable that the Bill should say what considerations the court should adopt.
There is a slightly different point. What is the meaning of the phrase,
“a change of circumstances affecting the order”?
What is the position where the applicant says, “I have turned over a new leaf”? That is the point made by the hon. Member for Taunton. Is a person who says, “I have turned over a new leaf” a person who can say that there has been a change of circumstances affecting the order? I do not know the answer to that. But it is rather important. If the applicant can say that he comes within that rubric, this is a form of appeal against the order once made. If not, if we are dealing with a technical matter only—for instance, “I no longer wish to use this particular mobile telephone, but I would like to use another one,” or, “I do not want to use this bank account; may I use another?”—it is a very limited right to apply for a discharge of the order. I would welcome guidance from the Minister on the meaning to be given to the phrase
“change of circumstances affecting the order”.
In short, is it an opportunity for people who have turned over a new leaf and who want to lead a new life to ask for the order to be lifted? As I said, I would like to see the criteria to be adopted by the court set out in the Bill.