Clause 1

Serious Crime Bill [Lords] – in a Public Bill Committee at 10:30 am on 26 June 2007.

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Serious crime prevention orders

Photo of Jeremy Browne Jeremy Browne Opposition Whip (Commons), Shadow Minister (Home Affairs)

I beg to move amendment No.1, in clause 1, page 1, line 6, after ‘satisfied’, insert ‘beyond reasonable doubt’.

Photo of John Bercow John Bercow Conservative, Buckingham

With this it will be convenient to discuss the following amendments: No. 16, in clause 1, page 1, line 6, leave out ‘satisfied’ and insert ‘certain’.

No. 51, in clause 1, page 1, line 8, leave out

‘it has reasonable grounds to believe that’.

No. 17, in clause 1, page 1, line 8, leave out

‘has reasonable grounds to believe’ and insert ‘is satisfied’.

No. 2, in clause 1, page 1, line 12, after ‘satisfied’, insert ‘beyond reasonable doubt’.

No. 52, in clause 1, page 2, line 1, leave out

‘it has reasonable grounds to believe that’.

No. 119, in clause 20, page 12, line 25, leave out

‘it has reasonable grounds to believe’ and insert

‘is satisfied beyond reasonable doubt’.

No. 124, in clause 21, page 13, line 15, leave out

‘has reasonable grounds to believe’ and insert

‘is satisfied beyond reasonable doubt’.

Photo of Jeremy Browne Jeremy Browne Opposition Whip (Commons), Shadow Minister (Home Affairs)

This is the first time since I was elected two years ago that I have served as a member of a Bill Committee, and it is a privilege to do so under your chairmanship, Mr. Bercow. I hope that others will bear what I have said in mind if there are any glitches in my performance during the ensuing weeks.

I am throwing myself into the deep end by getting to the nub of matters at the start of the Committee’s consideration of the Bill. I shall explain why I consider this group of amendments to be of such import. The essential point is this: in order to fall foul of the Bill’s provisions, the court needs to be satisfied only that a person has committed an offence or may commit an offence. That is not a sufficiently rigorous threshold, which is why the amendment would, after “satisfied”, add “beyond reasonable doubt”. I shall give the Committee a little background and explain my motivation.

First, I shall tell the Committee about some of the representations that have been made. Kirsty Brimelow, the spokesperson for the Bar Council, said:

“The tortuous logic appears to be that the word ‘prevention’ means that restrictions are not punitive. This is word play and the logic is fallacious.”

The Criminal Bar Association said that one would need an “astute gymnastic mind” to be convinced of the provisions. John Stalker, a notable former deputy chief constable of Greater Manchester who appears regularly in the media, said that

“super-ASBOs, as these are being called, are not the answer to heavyweight criminals. They may be OK for hoodies on the street” but that they were not appropriate for heavyweight criminals.

So a person need not commit a criminal offence and need not be found guilty by a jury “beyond all reasonable doubt”. I was led to believe when I was growing up—and people still believe it to be the case today—that people expected such a threshold if their liberties were to be curtailed. All that is needed under the Bill is for the court to be “satisfied” in that regard. If people subsequently breached what John Stalker called the super-ASBO, criminal sanctions could follow even though the person had not been found guilty of an offence to that standard or burden of proof. That is my motive for moving the amendment.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

I support the hon. Gentleman’s remarks. I have tabled a number of amendments in this group, one of  which is in the same terms as those used by the hon. Gentleman in moving the lead amendment. The purpose of my amendments is to enhance the standard of proof required before the order can be made. The Committee will see that I have incorporated the higher standard of proof with regard to both of the elements set out in clause 1, which is to say that the court must be satisfied not only that it is beyond reasonable doubt that the individual has been involved in serious crime, but, secondly and differently, that the order would protect the public in the way set out in the Bill.

It is important to understand how far-reaching the orders are. For that purpose, we need to look at clause 6, which sets out the consequences of an order. Until one has addressed those, one cannot understand how important it is to have a high standard of proof for the making of the order. If one looks at subsection (3), one will find that the orders are among the most draconian ever contemplated by the legislature in this country. The power of the court is not confined to the making of the orders in subsection (3); they are but examples. It says:

“Examples of prohibitions, restrictions or requirements that may be imposed on individuals (including partners in a partnership) by serious crime prevention orders include prohibitions or restrictions on, or requirements in relation to—

(a) an individual’s financial, property or business dealings or holdings;

(b) an individual’s working arrangements;

(c) the means by which an individual communicates or associates with others, or the persons with whom he communicates or associates;

(d) the premises to which an individual has access;

(e) the use of any premises or item by an individual;

(f) an individual’s travel (whether within the United Kingdom, between the United Kingdom and other places or otherwise).”

The Committee needs to understand that an order made under those provisions will wholly restrict a person’s liberty in every material way. It could be used to prevent him from earning his living; to prevent him from travelling; to confine him to a particular part of the United Kingdom; to prevent him from living in his own house; to prevent him from visiting another person’s house; to prevent him from talking to individuals; to prevent him from using his bank, and so on. It is some of the most draconian legislation that I have had the misfortune to see.

Those are facts. In what circumstances should such draconian orders be made? Let us consider the order-making power that is set out in clause 1, to which the hon. Gentleman referred. He was absolutely right: such orders can be made in respect of a person who has committed no substantive offence of any kind, because that is the effect of subsection (1)(a) and (b). The definition of involvement in serious crime is set out in clause 2; it embraces convictions, to which we will come shortly, but it also embraces such offences as facilitating

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

Incidentally, the definition of a serious offence in the schedule includes unlawful fishing and other such examples.

Let us stand back and consider the matter seriously. Through the Bill, the Government propose to incorporate the most draconian restrictions that one  can readily contemplate, in respect of people who have committed either fairly trivial offences or no offence whatsoever. I ask rhetorically: is that what this House should do? I hope that the answer is no, it is not.

Photo of Vernon Coaker Vernon Coaker The Parliamentary Under-Secretary of State for the Home Department

Notwithstanding the right hon. and learned Gentleman’s passion, does he believe that the High Court, which is a public authority for the purposes of the Human Rights Act, will put into place an order that will do the things that he is suggesting to this Committee that it would do, which would be totally disproportionate and at odds with the Human Rights Act? Does he really think the High Court would do that?

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

It is the business of Parliament to safeguard the rights of the citizen. Of course we trust the courts to act justly; we need to set out the criteria by which they will have to implement the order-making power. Incidentally—we will come to this shortly—this Bill does not provide any proper criteria of any kind to guide the courts. That is why I tabled amendments, one of which includes the word “proportionate”, which the hon. Gentleman has just used, which does not appear in the Bill as drafted. As the hon. Gentleman used my word, I hope he will support my amendment, because it reflects exactly the policy that he is articulating.

The truth is that it is the business of Parliament to safeguard the liberties of the subject; the courts have an important role to play, but the plain fact is that if you give power to anybody there is a risk that it will be abused. That is why, as a matter of principle, we should give the minimum power that has to be extended in a democratic society for the good of society. I am not in favour of giving powers that are capable of being abused.

I return to my point: the Bill creates the power to make draconian orders in respect of trivial offences—or things that are not offences at all. That being so, how can we remedy it, other than having a stand part debate and excluding clause 1? It is a matter for the Chairman, Mr. Bercow, but I hope that we will have lots of stand part debates on clause after clause. One very important step is to ensure that the courts cannot make these orders unless they are satisfied beyond a reasonable doubt that the criteria are made out.

Photo of Jeremy Wright Jeremy Wright Conservative, Rugby and Kenilworth

I entirely agree with my right hon. and learned Friend’s argument, that the safeguard for the criminal standard of proof is necessary. Does he agree that one of the reasons for that is that when one considers the proposed offence of facilitating the commission by another person of a serious offence, paragraph 33 of the explanatory notes makes it clear that subject to any consideration of whether what the respondent has done is reasonable,

“the court must ignore the intentions and other aspects of the mental state of the respondent at the time of the act in question. This means that it does not matter if the respondent did not, for example, intend to facilitate the commission of a serious offence, or had no knowledge that he was conducting himself in a way that was likely to facilitate serious crime.”

In those circumstances, all the safeguards we can possibly have are entirely appropriate.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

My hon. Friend is entirely right; he is anticipating some of our later debates. He will see that in amendments that appear further down the selection list I have incorporated the phrase “knowingly and intentionally” with regard to the facilitation offence, and I have also taken up the particular point that my hon. Friend made, to so amend the Bill that the court is directed to have regard to the intention and knowledge. We will come to that debate shortly.

My hon. Friend has highlighted the fact that the facilitation offence is strict liability in respect of something that is not an offence known to the criminal law and which exposes the respondent to extremely draconian risks. We need to tighten up the legislation to try to ensure that the courts act only when they are satisfied beyond reasonable doubt.

I have no difficulty with my hon. Friend’s word “certain;” the word “sure” could be incorporated, but some form of higher standard is required.

I am well aware that the Minister is likely to say, “What about the case of McCann?” As the Committee knows, McCann is a case in the Court of Appeal that relates to antisocial behaviour orders. It is true that the courts apply a higher standard of proof in respect of a range of matters that are quasi-criminal. In the McCann case, the House of Lords indicated that the standard of proof should be virtually the same as the criminal standard.

When this matter was debated in the other place, it was conceded that the standard of proof is always on a sliding scale: sometimes it is the full standard of proof, as required in a criminal case; sometimes it is not, and sometimes it is virtually the full standard. It depends on the facts of the particular case and the degree of criminality being asserted.

However, the important thing is to say this; we should not leave this matter to the court. If I am right in saying that this is a matter of fundamental importance, then we should incorporate the required standard of proof in the legislation—

Mr. Browne rose—

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham 10:45, 26 June 2007

I will, of course, give way, if the hon. Gentleman will just give me a moment.

We should incorporate the required standard of proof in the legislation and not leave it exclusively to the courts. May I remind the Committee that, from time to time, we discuss the discretion of the courts, for example under the tariffs for mandatory life sentences? This House has said to the courts, “We do not leave to your exclusive discretion the minimum tariffs to be imposed for life sentences, because we think that these things should be determined by this House”. That is my view with regard to this particular measure in this Bill; it should be determined by this House and not left to the courts.

Photo of Jeremy Browne Jeremy Browne Opposition Whip (Commons), Shadow Minister (Home Affairs)

I wonder what the right hon. and learned Gentleman thinks about the observations made by Baroness Scotland in the other place on this very issue. I think that it was in the debate on Second Reading that she said:

“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.]

Does the right hon. and learned Gentleman share my concern that there are a lot of mealy-mouthed words in there? For example,

“the likely standard of proof” and “very close” are not quite close enough.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

I agree with that. One of the problems that faced Baroness Scotland was this—

Photo of John Bercow John Bercow Conservative, Buckingham

Order. I am listening intently to what the right hon. and learned Gentleman is saying, but I must implore him to speak from behind his desk, rather than to perambulate around the room; that is not in order. So, if he would speak from his position in the way that every other Member does, that would be very helpful.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

I will remain chained to my place, Mr. Bercow.

The problem that Baroness Scotland faced in the other place was this; although the proposition that in serious cases involving criminality the court will generally impose something approaching the highest standard of proof is a correct one, it is a sliding scale, as she herself acknowledged. I think that the sliding scale will vary depending upon the nature of the consequences incorporated in the order and the nature of the criminality being asserted. Therefore, she could not be more positive than that in her assessment. However, what both she and the hon. Member for Taunton are right in saying is that we do not know for certain the standard of proof that the court will require in respect of the order-making powers, and we need to know that. That is our duty, and I say that anybody who argues otherwise is failing in their duty.

There is another point; it is the last point that I am going to make on this particular measure. I can see prosecution authorities coming to the conclusion that it would be better to use the order-making power than to institute prosecutions, because if one looks at the order-making power itself one will see that, in reality, one can impose a whole range of penalties upon people against whom it is not possible to secure a conviction. It is even worse than that, because if one looks yet further within the Bill, one can see that the orders can be rolled over, year after year after year. So let us pause just for a moment and note this fact; prosecution authorities may well be tempted to use this power, because there is a lower standard of proof required, they can achieve very much the same effect in terms of penalty and the process can go on for very much longer. Of course, it can also be used in respect of unlawful fishing too, if people were foolish enough to try that. Now, is that really something that the House of Commons should be promoting? I leave that question hanging in the air, because the answer is, “Manifestly not.”

Photo of Nick Herbert Nick Herbert Shadow Minister (Home Affairs)

I agree with the hon. Member for Taunton, who tabled this amendment, and with my right hon. and learned Friend the Member for Sleaford and North Hykeham,  that this is a very important amendment, as it goes to the heart of what clause 1 and part 1, which deal with the operation of serious crime prevention orders, are about.

I agree with both of them that the reason we should be concerned about the evidential burden—which is what the amendment and indeed very similar amendments that I tabled which would have had largely the same effect as the hon. Gentleman’s amendment are about—is because of the very serious nature of the potential offences that are created by breach of these orders and because of the nature of the restrictions that can be placed upon an individual’s freedom as a consequence of these orders.

The orders are very wide-ranging in their scope. Clause 2 makes it clear that the involvement in a serious crime, which must be demonstrated if an order is to be made by the High Court, does not need the commissioning of any criminal offence. Indeed, the definition of “serious offence”—the list of potential serious offences—includes one that is actually determinable by the court itself. We will come to all these issues in later amendments.

The restrictions that the High Court is able to enforce in the making of a serious crime prevention order are very serious ones. There is a non-exhaustive list of the potential restrictions in the Bill. They include specifically under clause 6(6) restrictions relating to the occupation by the individual of their own private dwelling. Those restrictions can also apply to third parties who may be affected by the serious crime prevention orders but are not subject to them.

The penalties are very serious. Breach of these orders carries a criminal sanction: under clause 26 a fine or a term of up to five years’ imprisonment. As my right hon. and learned Friend observed, these orders can last for five years and they are renewable indefinitely. No system of review of the operation of these orders has been proposed under the Bill by this place or anybody else. Again, I hope we will come to these matters in later amendments. All of this demonstrates that the nature of these orders requires us to be very careful indeed before allowing this incursion into the civil law of what is a quasi-criminal remedy.

Indeed, I should observe that some of the restrictions that can be placed on individuals under the operation of serious crime prevention orders are actually more restrictive than those relating to control orders, where a review process is permitted under legislation.

So the question is, given that these are civil orders, not criminal orders, but ones which carry a serious criminal sanction should they be breached, what is the correct evidential burden? To what extent should the court be satisfied that there has been some involvement in serious crime? Should they be satisfied to the criminal standard which is beyond reasonable doubt, as we propose in the amendment—an alternative wording I proposed is that the court should be certain—or is it acceptable that the far lower civil standard on the balance of probabilities should be applied, in other words that the court need only believe that it is likely that the person had been involved in serious crime, bearing in mind this very wide definition of what the nature of that involvement can be and bearing in mind that no offence need have been committed for the person to have been so involved?

Photo of Vernon Coaker Vernon Coaker The Parliamentary Under-Secretary of State for the Home Department

May I point out to the hon. Gentleman that clause 1(1)(a) may be an example of where you would expect the evidence to be beyond reasonable doubt. If, however, he looks at clause 5(2)(a), which is where a respondent is saying to a court that is trying to impose a serious crime prevention order that, in fact, their behaviour was reasonable and not unreasonable, it is perfectly proper in those circumstances for the standard of proof not to be “beyond reasonable doubt”, in other words the criminal standard, but to be “on the balance of probabilities”. That would be fairer to the respondent in the case.

Photo of Nick Herbert Nick Herbert Shadow Minister (Home Affairs)

I am grateful for the Minister’s intervention, but I do not think that that matter is in dispute, is it? What we are talking about is what the evidential burden should be in the initial making of the serious crime prevention order, not when the defendant responds to the court.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

Before my hon. Friend welcomes the suggestion made by the Minister, perhaps he would look a little more carefully at clause 5(2)(a). He will see that there is a reverse burden of proof; that the burden is actually on the respondent rather than on the Crown. In any event, it is in respect of the facilitating offence, which is not an offence known to the law. So what the Minister is actually requiring is that, in respect of an act that is not an offence known to the law, there should be a reverse burden of proof on the respondent to show that what he was doing was reasonable.

Photo of Nick Herbert Nick Herbert Shadow Minister (Home Affairs)

I agree entirely with my right hon. and learned Friend. However, that matter is not the subject of this amendment and not what we are discussing. We are discussing clause 1 and the original evidential burden that will be necessary for the making of one of these orders. No doubt, we will come on to that issue of the reverse burden of proof in clause 5.

So, should we allow these orders to be made on the balance of probabilities, or should we allow them to be made only where there is evidence beyond reasonable doubt that the person concerned has been involved in serious crime?

Part of the problem here has been that the Government have not been clear about what they intend in relation to the legislation. Part of the purpose of this amendment is to get the Government to be clear about what they mean, and to put in the Bill a measure that I think most hon. Members would like to see in relation to the evidential burden.

My right hon. and learned Friend has already raised the issue of the McCann judgment, which has also been raised by a number of external organisations, including Liberty. During the Second Reading debate on 12 June, the Minister for Security, Counter Terrorism and Police went to the trouble of trashing Liberty’s briefing on this issue. He did so in a very uncompromising manner. He quoted the part of the briefing that said:

“The Government may hope that these orders are a way of getting round the presumption of innocence because the applicable standard of proof will be the lowest civil standard of ‘on the balance of probabilities’”.—[Official Report, 12 June 2007; Vol. 461, c. 664.]

That was Liberty’s fear—that the rules of evidence that should be applied in relation to these very serious orders would not be applied, and that the lower test would apply, that of

“on the balance of probabilities.”

The Minister for Security, Counter Terrorism and Police went on to say:

“That is absolutely wrong. My noble and learned Friend Baroness Scotland stated categorically in the other place that, in keeping with the House of Lords judgment in the case of McCann, 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, namely ‘beyond reasonable doubt.’ Liberty’s assertion is thus entirely unfounded—a bit of a shame.”—[Official Report, 12 June 2007; Vol. 461, c. 664.]

If that is the case and if we are to take the word of the Minister for Security, Counter Terrorism and Police for it, as expressed on Second Reading, that the test is to be “beyond reasonable doubt”, what possible objection can the Government have to the inclusion of those words in the Bill by this amendment? What possible objection could they have, given that that is the test that the Minister has said would apply?

In fact, the Minister, disgracefully, misquoted what Liberty actually said. Liberty made it clear that there was a caveat. Although it said it was clear that the Government intended originally to apply the test of the balance of probabilities, it pointed to the McCann judgment and noted:

“In the context of ASBOs this does not seem to have worked...The Courts have developed a heightened civil standard of proof which Lord Bingham has described as, for all practical purposes, indistinguishable from the criminal standard”.

Therefore, it is the McCann case we should turn to, because, as the hon. Member for Taunton pointed out, contrary to what the Minister said on Second Reading, Baroness Scotland, the Minister in the House of Lords, was talking not about beyond reasonable doubt being the correct evidential burden for the clause but the balance of probabilities when she said that there should be a sliding scale. She said:

“I thank those who have acknowledged the sliding scale in relation to the balance of probabilities.”—[Official Report, House of Lords, 7 February 2007; Vol. 689, c. 764.]

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham 11:00, 26 June 2007

It is interesting in this context to consider clauses 34 and 35, where the Bill makes it plain that proceedings before the High Court and proceedings before the Crown court are civil proceedings. When the Bill was originally drafted, the Government had it in mind to use, if they could, the civil, bare standard of proof; that is why, inter alia, they put this in the Bill.

Photo of Nick Herbert Nick Herbert Shadow Minister (Home Affairs)

My right hon. and learned Friend is absolutely correct. We do not have to rely only on our interpretation of the Bill to realise that; we can refer to the Green Paper, “New Powers Against Organised and Financial Crime”, published last July, in which the Government proposed serious crime prevention orders for the first time. On page 32, paragraph 3.4 of the document, they deal specifically with the standard of proof. The Government point out that standards of  proof vary for the various civil orders on the statute book. In the case of terrorist control orders the basis of the proof is reasonable suspicion; for ASBOs, which are analogous to the serious crime prevention orders, although the orders are civil, the legislation refers to proof being necessary. The McCann judgment has imposed a standard not far from the criminal one. Paragraph 3.4 of the document continues:

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

The document says that the test should be on the balance of probability, the Minister in the House of Lords says that there is a sliding scale in relation to the balance of probabilities, but the Minister in the House of Commons tells us that the test is beyond reasonable doubt.

We should not underestimate the importance of clarity in this matter; we are talking about restrictions in relation to people’s lives, which could be immensely onerous, and about whether a court has to decide that it is likely that a person has been involved with serious crime—in other words, there may be only a 51 per cent. chance that that person has been involved in serious crime—or whether the court is certain that they have.

On that test will fall the operation of these orders and the very serious conditions that can be attached to them; freedom of assembly, which is granted under magna carta will be compromised, and breaches of those conditions will be very serious criminal offences. The lack of clarity in this matter is very serious. These are not nice legal points; they go fundamentally to the operation of these clauses.

The Minister referred to the McCann judgment, which is immensely important because it set what should be the correct evidential burden in relation to ASBOs. The first thing to say about the McCann judgment is that it specifically related to ASBOs, so we do not know that it will be used by the courts in relation to serious crime prevention orders.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

What is more, it is quite plain from paragraph 3.4 of the White Paper that the Government was taking the view that you cannot necessarily transfer the McCann judgment to the power now under discussion because in that paragraph the distinction is made between ASBOs and these powers. With respect to these powers, the Government is saying that they hope, notwithstanding ASBOs, that the balance of probability will be the test used.

Photo of Nick Herbert Nick Herbert Shadow Minister (Home Affairs)

Again my right hon. and learned Friend is exactly right. We cannot therefore expect the courts to rely on what has been said in this place or what Ministers may have said when setting the burden when it has been made quite clear that the burden is to fall below the standard of “beyond reasonable doubt”. That is in effect what is implied in the Bill and that is what was said directly in the White Paper.

The McCann judgment in any case was completely unambiguous. There was no sliding scale, to use the  words of the Minister in the other place in relation to the McCann judgment. Lord Stein, in delivering his judgment in McCann in relation to the standard of proof said:

“In my view, pragmatism dictates that the task of magistrates should be made more straightforward by ruling that they must in all cases under section 1”— that is the section under which ASBOs can be made—

“apply the criminal standard in all cases.”

There is no sliding scale in relation to that. That view was echoed in the other judgment that was given on this matter by Lord Hope who said:

“I would hold that the standard of proof that ought to be applied in these cases to allegations about the defendant’s conduct is the criminal standard.”

So we have the extraordinary proposition in this Bill, if the Minister will not accept this amendment or clarify that “beyond reasonable doubt” is the correct test, that in the making of an ASBO the courts will, when following the McCann judgment, have to apply an evidential burden which is, to use the words of Lord Chief Justice Bingham, indistinguishable from the criminal standard. They will therefore effectively have to be satisfied beyond reasonable doubt that a person had been engaged in anti-social behaviour before they can make that ASBO—for low-level issues of anti-social behaviour.

For the operation of serious crime prevention orders, however, if “beyond reasonable doubt” is not to be the test, if there is to be some test which is lower than the evidential burden of McCann, courts will not have to be satisfied beyond reasonable doubt. For these much more serious orders, therefore, relating to much more serious potential offences, targeting the Mr. Bigs with very onerous restrictions and criminal penalties attached to them, the evidential burden for making these orders is apparently to be lower than that in relation to ASBOs. Nobody will have the ability to review the making of those orders.

I think the Minister will have to provide a very clear explanation of this. If his colleague was correct and the test is “beyond reasonable doubt”, there is absolutely no reason why he should not accept the hon. Gentleman’s amendment and place that immediately on the face of the Bill. If that is not to be the test, which is the import of the White Paper, the Minister should say so and we will know that there is to be this lower evidential burden for the making of these orders, in which case the Committee and indeed this place as a whole will start to take a very different view of the way in which these orders can be applied. The Minister must now tell us which of the evidential burdens is to apply.

Photo of Vernon Coaker Vernon Coaker The Parliamentary Under-Secretary of State for the Home Department

Let me start my remarks, Mr. Bercow, by formally moving to welcome you to the Chair of the Committee and also to welcome your co-Chair, Mr. Benton. We look forward to interesting and challenging debates on these important matters. I also take this opportunity to welcome all other hon. Members to the Committee.

The first part of the debate was interesting and important. As the right hon. and learned Member for Sleaford and North Hykeham said—his hon. Friends and the hon. Member for Taunton made the same  point—this is an important discussion. I hope to reassure hon. Members of the Government’s position.

I shall answer a couple of specific points before I make some general comments. The hon. Member for Arundel and South Downs asserted that an order can impose restrictions on a person who is not the subject of that order. That is absolutely not the case; an order can place prohibitions, restrictions, requirements or other terms only on its subject.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

The Minister understands that the Bill provides a power for a third party to make representations if their interests are affected. He will know that from the terms of the Bill, and we have tabled amendments to deal with it. It follows that where a person who is the subject of an order has restrictions placed on him that affect his rights to trade with third parties, those third parties will be affected.

Photo of Vernon Coaker Vernon Coaker The Parliamentary Under-Secretary of State for the Home Department

They would have to be the subject of the order. The third party would have the ability to make representations about the impact on them, but they would have to be included in the order as a subject.

I shall now move on—

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

I should do it rapidly if I were you.

Photo of Vernon Coaker Vernon Coaker The Parliamentary Under-Secretary of State for the Home Department

I shall now move on to a couple of the right hon. and learned Gentleman’s other points. He mentioned Baroness Scotland’s position. She stated quite clearly that the applicable case law was the McCann case, which discussed the civil standard, as the right hon. and learned Gentleman knows. She stated equally clearly that the civil standard was flexible. The civil standard will apply to civil orders. The flexibility means that, in relation to clause 1(1)(a), the court will be able to require a standard of proof beyond reasonable doubt, as set out in McCann.

In relation to clause 5(2)(a)—this was the intervention that I was trying to make during the remarks of the hon. Member for Arundel and South Downs—the court can apply the lower standard of proof, that of balance of probability. That is what we mean by a sliding scale.

Mr. Hogg rose—

Photo of Vernon Coaker Vernon Coaker The Parliamentary Under-Secretary of State for the Home Department

Does the right hon. and learned Gentleman want to intervene?

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

Yes. I am reading paragraph 3.4 of page 32 of the Green Paper:

“In the case of organised crime, the potential harms are somewhere between, and we would envisage stating on the face of the legislation that to impose an order the courts should be satisfied on the balance of probability that the test is met.”

Will the Minister tell the Committee whether the Bill reflects that statement of intent?

Photo of Vernon Coaker Vernon Coaker The Parliamentary Under-Secretary of State for the Home Department

I quoted to the right hon. and learned Gentleman the correct position of Baroness Scotland,  when she outlined in the other place the Government’s position on the appropriate standard of proof. That is the point that I was trying to clarify.

Photo of John Bercow John Bercow Conservative, Buckingham

Order. Let us establish at the outset that there are rules that are to be observed by every member of the Committee, without discrimination. Members of the Committee do not intervene by chuntering from a half-sedentary position, “Will the Minister now answer my question?” [ Interruption. ] Order. If the right hon. and learned Gentleman wishes to intervene, he is entitled to seek to intervene. He will do so in the same way as every other hon. and right hon. Member does so.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

On a point of order, Mr. Bercow. I apologise if I offended you. I got to my feet and, as I understood it, the Minister was sitting down. If he was not, I apologise.

Photo of John Bercow John Bercow Conservative, Buckingham

No. For the avoidance of doubt, I am not having any trouble seeing the position. The right hon. and learned Gentleman was starting to rise and he did not ask to intervene; he simply blurted out his question. I do not want to argue the point with him. He can speak when he has the opportunity to do so when he is on his feet. However, the rules are the rules and they will be applied without discrimination. If there is a dispute about whether the rules have been observed, the arbiter is not a member of the Committee, but its Chair.

Photo of Nick Herbert Nick Herbert Shadow Minister (Home Affairs) 11:15, 26 June 2007

On a point of order, Mr. Bercow. When applying the rules of the House to the conduct of this Committee, do you establish whether there has been a breach on the balance of probabilities, or does it have to be proven beyond reasonable doubt?

Photo of John Bercow John Bercow Conservative, Buckingham

That was an enjoyable observation, but not a point of order.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

As the power of the Chair can be penal, should such a breach not have to be proven beyond reasonable doubt?

Photo of John Bercow John Bercow Conservative, Buckingham

I am grateful to the right hon. and learned Gentleman and glad that a sense of humour has been displayed. However, we must now get back to the main business of the Committee.

Photo of Vernon Coaker Vernon Coaker The Parliamentary Under-Secretary of State for the Home Department

Perhaps we could apply a sliding scale, under which “beyond reasonable doubt” would apply to the right hon. and learned Gentleman and “on the balance of probabilities” to others.

I am afraid that the Government must resist the amendments, as they are unnecessary and undesirable in principle. In discussing them, I shall also try to set out why 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. Such orders aim to reduce the harm caused by serious crime by preventing those engaged in it from carrying on. They are about not punishing past actions, but preventing future engagement in activities that cause harm to society.

That extremely important point goes to the heart of the Bill. The measures are preventive, not punitive—they are about preventing harm. As I said, they are not about punishment; if they were punitive, they would not be appropriate for a civil order. 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 for the judgment of the court. Does it have reasonable grounds for believing that the order will prevent future harm caused by serious crime?

Amendments Nos. 1 and 2 would change in clause 1 the required standard of proof to be discharged in respect of the first limb of the test, from the civil standard to the criminal standard of “beyond reasonable doubt”. The appropriate standard of proof for such orders was debated at some length in the other place. As can be seen from Hansard, there was initial confusion about what having the civil standard of proof would mean in practice. It will be best if I clear up any potential misunderstandings.

Photo of Jeremy Wright Jeremy Wright Conservative, Rugby and Kenilworth

On the specific point of clearing up any misunderstandings, the Minister said that clause 1(1)(a) was a simple matter of fact. Will he confirm that what is involved is not simply a matter of the court looking at the person’s record of previous offences and considering whether they have committed a criminal offence? Clause 1(1)(a) states that the High Court must be

“satisfied that a person has been involved in serious crime”.

“Serious crime” is defined in clause 2, which goes into some of the issues that we have discussed, such as the facilitation of

“the commission by another person of a serious offence” or a person’s having

“conducted himself in a way that was likely to facilitate the commission by himself or another person of a serious offence”.

The issue is not quite as straightforward as the Minister puts it.

Photo of Vernon Coaker Vernon Coaker The Parliamentary Under-Secretary of State for the Home Department

That is a matter of opinion; our belief is that the vast majority of cases relating to clause 1(1)(a) would involve people who had been convicted of a criminal offence.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

Will the Minister give a reason for making that assertion? The Bill makes the issue plain; we have only to look at clause 2(1)(a), (b) and (c). Two of the paragraphs deal with facilitation; only one deals with the commission of an offence. Why should we suppose that the commission of a serious offence will be the majority case?

Photo of Vernon Coaker Vernon Coaker The Parliamentary Under-Secretary of State for the Home Department

I said that we believed that the majority of such cases would involve people who had been  convicted of a criminal charge and that the serious crime prevention order would be applied alongside that. On facilitation, the High Court would have to be satisfied that the person had been involved in serious crime. So different measures of the Bill refer to different people, who may then be made subject of a serious crime prevention order. As I say, the application of the Bill would be different for different people, which is the essence of why we believe, with respect to a civil order, there would be a sliding scale of evidence, because it would be different in different circumstances for different people.

As I said, the civil standard of proof is a flexible one. The House of Lords, in the case of McCann, decided that, for ASBOs, the standard of proof that the courts should apply when deciding if a person has acted in an antisocial manner should be the same as the criminal standard, which is “beyond reasonable doubt”. To quote Lord Steyn in the McCann judgments:

“Having concluded that the relevant proceedings are civil, in principle it follows that the standard of proof ordinarily applicable in civil proceedings, namely the balance of probabilities, should apply.”

However, I agree that, given the seriousness of the matters involved, at least some reference to the heightened civil standard would usually be necessary. Lord Bingham of Cornhill went on to observe:

“The heightened civil standard and the criminal standard are virtually indistinguishable.”

In the McCann judgment, therefore, the House of Lords is laying out for us, in case law, what would be the appropriate standard of proof with respect to civil orders. The hon. Members for Arundel and South Downs and for Taunton made the point that, although the McCann judgment relates to ASBOs, many of the principles from the case have been applied in relation to other civil injunctive orders and we can expect them to apply in relation to serious crime prevention orders.

Clause 1(1)(a) says:

The High Court in England and Wales may make an order if—

(a) it is satisfied that a person has been involved in serious crime (whether in England and Wales or elsewhere)”.

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. Baroness Scotland has said that in the House of Lords. I have repeated that here. I hope that that gives some reassurance to the hon. Member for Taunton. By saying that the criminal standard of proof is beyond reasonable doubt, through McCann and in the statements that Baroness Scotland has made in the House of Lords and that I have made in this House, that shows that we expect that the standard of proof, with respect to that first limb in clause 1(1)(a), to be virtually identical to the criminal standard.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

Does the hon. Gentleman not understand that this Committee finds it very difficult to reconcile what the Minister has just said with what is in his White Paper, in paragraph 3.4, which was published long after McCann? In that paragraph, there is a specific reference to McCann and it goes on to say:

“In the case of organised crime, the potential harms are somewhere between, and we would envisage stating on the face of  the legislation that to impose an order the courts should be satisfied on the balance of probability that the test is met.”

That is what is in the Minister’s White Paper, drawing away and disapplying McCann.

Photo of Vernon Coaker Vernon Coaker The Parliamentary Under-Secretary of State for the Home Department

All I can say to the right hon. and learned Gentleman, in answer to his specific points, is that what I have tried to do is to set out not what is in the White Paper but what is relevant to the Bill that is going through Parliament now. What was said by Baroness Scotland in the House of Lords, in answer to questions by many of his hon. Friends in the other place, was to reassure them 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. It is perfectly reasonable for him to quote the White Paper, but it is also perfectly reasonable for me to say that, notwithstanding what is in the White Paper, I am saying in this Committee, in the House of Commons, as Baroness Scotland said on the Floor in the House of Lords, what we expect the standard of proof to be, with respect to clause 1(1)(a). I hope that that reassures him; to repeat myself, notwithstanding what it says in the White Paper, what is relevant and appropriate is what has been said by Baroness Scotland in another place and what I have said here.

Photo of Nick Herbert Nick Herbert Shadow Minister (Home Affairs)

But the problem is that Baroness Scotland did not say, in another place, what the Minister is suggesting that she said. She said:

“In the most serious issues, quite often the distinction between the criminal standard and the civil standard will be negligible.”—[Official Report, House of Lords, 7 February 2007; Vol. 689, c. 764.]

There was an element of doubt in what she was saying about whether the standard of “beyond reasonable doubt” would be required. In the same paragraph she said that there was a “sliding scale”. Does the Minister not understand that his assurances are not sufficient to allay concerns? There is no guarantee that the courts will apply the McCann judgment to these offences, which are more serious than those requiring ASBOs. If what he says is correct and his intention is that the evidential standard should be “beyond reasonable doubt”, why does he simply not put it in the Bill and avoid all doubt?

Photo of Vernon Coaker Vernon Coaker The Parliamentary Under-Secretary of State for the Home Department

The hon. Gentleman is trying to get the Government to introduce into the Bill something relevant to criminal law. These are civil orders. We are trying, in Committee, to flesh out the evidential base for a civil court. They are not criminal proceedings. The words, “beyond reasonable doubt” and the sorts of amendments to which he has referred would blur the distinction between criminal and civil law. We are trying to clarify the evidential base for civil proceedings.

Photo of Jeremy Wright Jeremy Wright Conservative, Rugby and Kenilworth

I am very grateful to the Minister for giving way; he is being generous this morning. I do not want to ask him about what another Minister has said or, indeed, what has been said in the White Paper, but specifically about what he has been able to say today. I understand entirely that he is attempting to reassure  the Committee. Does he accept, however, that the difficulty is that, owing to the seriousness of the orders that could be made under the legislation, whether civil or criminal—we will argue about that later—it is important that the Bill is clear about what an individual may face, before they are made, and what standard of proof they are expected to meet? It is peculiar in the extreme that he is really saying that he expects the courts to clarify that matter at a later date. The courts will look to statute and hope to interpret, not make it. It is for this Committee and the House to make the law in the first place, and it should be as clear as we can make it.

Photo of Vernon Coaker Vernon Coaker The Parliamentary Under-Secretary of State for the Home Department

I am trying to say to the Committee that civil orders will be made according to a sliding scale. On clause 1(1)(a), we would expect the standard of proof to be virtually identical to that for criminal proceedings, which is what the McCann judgment tells us. That is relevant to the quotes that I have read out, but to repeat, Lord Bingham of Cornhill observed that the heightened civil standard and the criminal standard are virtually indistinguishable. I have tried to reassure the Committee and to demonstrate our belief that, with respect to the first limb in clause 1(1)(a), we expect the civil and criminal standards to be virtually indistinguishable.

We are saying also that there are other elements to the making of the serious crime prevention orders in which we expect that the standard of proof will not necessarily be at that level. That was the point that I was trying to make to the hon. Member for Arundel and South Downs, but I was accused of not understanding. I was trying to point out that, with respect to clause 5(2)(a), notwithstanding the reverse burden of proof, which means that it is for the respondent to prove that their actions were reasonable in the face of an SCPO from the applicant authority saying that they were unreasonable, we think that it would be much fairer and better for the respondent in a civil court to demonstrate that their behaviour was reasonable on the balance of probability, rather than on the balance of “beyond reasonable doubt”. That was the only point that I was trying to draw attention to. It is a sliding scale and, of course, therefore, courts must have the discretion, when deciding whether to apply a serious crime prevention order, to apply the appropriate standard of proof, depending on which part of the proceedings is being dealt with.

Photo of Ian Lucas Ian Lucas Labour, Wrexham 11:30, 26 June 2007

Does my hon. Friend agree that the central difficulty is that those who propose the amendment do not recognise that the Bill is intended to deal with situations that are not currently covered by criminal law? It is for that reason that the clause contains civil proceedings. The purpose of the Bill is to protect victims of crime who are not currently protected by criminal law, so the orders have a civil burden of proof—they are civil orders, after all. The sliding scale is necessary to cover circumstances in which victims of crime are not currently covered. That is the entire purpose of the Bill.

Photo of Vernon Coaker Vernon Coaker The Parliamentary Under-Secretary of State for the Home Department

My hon. Friend makes an excellent point. To reinforce what I was trying to say, we do not want to punish past actions. The orders are not punitive; we will not be saying, “As a result of you being found guilty of this, this is your punishment.” That will be a matter for the criminal process. As my hon. Friend points out, we are trying to reduce harm and prevent further crime. As that is the aim of part 1 of the Bill, it is entirely appropriate for the civil process to be used.

Photo of Crispin Blunt Crispin Blunt Opposition Whip (Commons)

The Minister says that the orders are not about punishment, but his own party’s former Attorney-General, the noble Lord Morris of Aberavon, said in another place that we were

“in a situation that inevitably is in the same ballpark as a criminal penalty by the restrictions set out in subsection (3), that is in reality nothing more or less than a criminal penalty.”—[Official Report, House of Lords, 7 March 2007; Vol. 690, c. 240.]

So we are talking about things that amount to a pretty serious punishment, however the Minister attempts to dress them up.

On the sliding scale, the implication in the White Paper and elsewhere is that there should be a lower standard. When there is a serious risk of terrorist offences, the test is on the balance of probabilities. If it is assessed that there should be an intervention to prevent a serious threat to society, a lower burden of proof is required for the state to intervene. The McCann judgment on ASBOs, which are on a less serious threat to society, was that the criminal burden of proof should apply. I have to say—

Photo of John Bercow John Bercow Conservative, Buckingham

Order. I am sorry to interrupt the hon. Gentleman, but in the past 10 minutes or so interventions have become significantly longer. They need to get shorter. If he wishes very briefly to finish his point, he can.

Photo of Crispin Blunt Crispin Blunt Opposition Whip (Commons)

I am grateful, Mr. Bercow. If the Government want and expect the burden of proof to be virtually identical, the Minister now has the opportunity to make it so. He should do so.

Photo of Vernon Coaker Vernon Coaker The Parliamentary Under-Secretary of State for the Home Department

I am trying, as always, to be reasonable and fair in giving way to hon. Members, but I take your point about brevity, Mr. Bercow, and will bear it in mind.

On the point made by the hon. Member for Reigate about Lord Morris and punishment, the orders are called prevention orders because they are about preventing future crime to reduce harm. The restrictions placed on an individual by the High Court are about trying to prevent an occurrence in the future, not about punishing people for what they have done. The hon. Gentleman may sigh, but that is the fundamental purpose of the orders—to prevent crime and reduce the possibility of serious harm.

If the hon. Gentleman looks again at the McCann judgment, he will see that it will apply to serious crime prevention orders. The whole point made in the judgment was that such are the serious consequences of orders being imposed on people through due process that, in serious cases, one would expect the standard of proof to be close, or virtually identical, to the criminal  standard. The hon. Gentleman might not accept that. His colleagues might go to the House of Lords to argue that the McCann judgment was wrong and that all the Lords involved had got things wrong and misunderstood the process. That is a point of view and the judgment that the hon. Gentleman and his hon. Friends have made, but the Government accept the McCann judgment and the point that there should be a sliding scale for the standard of proof for civil orders.

Given the seriousness of some of the allegations that are made against people—the hon. Gentleman made the point about terrorism—and some of the restrictions that are placed on people as a consequence of the High Court taking action, the standard of proof should be virtually identical. All I am saying is that the Government accept that. That is the Government’s position on the very serious issues covered in clause 1(1)(a), and whether the hon. Gentleman agrees with it or not, I hope that I have made it clear. We expect the standard of proof in this case to be virtually identical to the criminal standard.

Photo of Crispin Blunt Crispin Blunt Opposition Whip (Commons)

I am confused because the implication of the sliding scale is that the more serious the offence—the more serious the threat to society—the lower the burden of the proof. That is the implication of the treatment of terrorism as opposed to ASBOs. In other words, a lower burden of proof is required for the state to intervene in respect of terrorism than in respect of ASBOs. The implication of the arguments that the Government advanced in another context is that the burden of proof would be lower, and I am rather confused about where serious crime fits in the scale. The Bill should not leave the Committee in a confused state, and these matters should be set out absolutely clearly in the Bill.

Photo of Vernon Coaker Vernon Coaker The Parliamentary Under-Secretary of State for the Home Department

It is not confused at all. It gives the High Court discretion and allows it to understand that, as far as Parliament is concerned, there is a sliding scale for the standard of proof. Perhaps I can repeat what I said before, because this is an extremely important point, and I hope that hon. Members will forgive me. Such is the seriousness of the test in clause 1(1)(a)—the first of the two tests—that we would expect the standard of proof, consistent with the McCann judgment, to be virtually identical to the criminal standard. There are other aspects, however, where the balance of probability would be used.

As I said, this may be a matter of disagreement between us, but my comments about what the standard of proof in clause 1(1)(a) should be will be perfectly clear when we read the transcripts of this Committee, just as Baroness Scotland’s comments in the other place are perfectly clear.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

We are looking now at the issue of facilitating somebody who has committed, or is going to commit, a serious offence. Is the Minister saying that the courts will apply the criminal standard in respect of the two elements of the standard of proof, or will they apply a criminal standard to one element and a civil standard to the other? They will have to decide, first, whether there is facilitation, and secondly, whether another person has committed, or is going to commit, a serious offence.

Photo of Vernon Coaker Vernon Coaker The Parliamentary Under-Secretary of State for the Home Department

I am saying that there is a sliding scale, which the High Court can use as appropriate. Given the seriousness of some aspects of the orders, we would expect the standard of proof to be virtually identical to the criminal standard.

This is not the only question in the Bill to which a standard of proof must be applied, and I alluded to that earlier. For example, when the court is deciding whether a person’s actions were reasonable and should therefore be disregarded, as set out in clause 5, we would expect the courts to use the flexibility of the civil test and to apply the lowest possible standard, the balance of probabilities, because the burden is on the subject to demonstrate the reasonableness of the actions. They are civil orders, so it is right that the civil standard of proof should apply. As a result, I urge the Committee to resist the amendment.

The intention of the hon. Member for Taunton is to make the applicable standard “beyond reasonable doubt”, but the House of Lords has already done so; I hope that what I have said reassures him that the amendment is unnecessary and that he will feel able to withdraw it. Amendment No. 16 would achieve the same end, so I ask the hon. Member for Arundel and South Downs not to press it further.

Amendment No. 17 would alter the threshold in relation to the second limb of the test. As I said, following McCann the second limb of the test in subsection (1)(b) will not be subject to a standard of proof as such, because it is a question of judgment and not of fact. It is not possible to prove something that might happen in future. The same argument applies to amendments Nos. 119 and 124 to clauses 20 and 21, on the power of the Crown court to make or to vary an order. The intention may be to require the second limb of the test to be proved, but I hope to have explained why it is not appropriate—although the amendment may be aimed at probing the appropriate threshold for the test in subsection (1)(b).

Amendments Nos. 51 and 52 seem to be aimed at the same question. We believe that we have set the threshold at the appropriate level. The courts must have reasonable grounds for believing that an order would protect the public. They must therefore have an objective basis for such a belief. The courts are used to applying the test of reasonableness, and it presents a significant hurdle for the applicant authority to meet it without it being so high as to make things unworkable.

I hope that the hon. Gentleman will withdraw the amendment.

Photo of Jeremy Browne Jeremy Browne Opposition Whip (Commons), Shadow Minister (Home Affairs)

I shall seek your guidance, Mr. Bercow, throughout our discussions; but I wish to make some concluding remarks before pressing the amendment to a Division. I do not wish to withdraw amendment No. 1, because it is of fundamental importance.

We have had a detailed discussion of the matter. I well understand that the purpose of Bill Committees is to discuss the nitty-gritty, and I greatly admire the right hon. and learned Member for Sleaford and North Hykeham for his forensic examination of the issues—if not for his observation of Committee etiquette, Mr. Bercow, as it leaves much to be desired.

Photo of Jeremy Browne Jeremy Browne Opposition Whip (Commons), Shadow Minister (Home Affairs)

I have observed in my short time—[ Interruption. ]

Photo of Jeremy Browne Jeremy Browne Opposition Whip (Commons), Shadow Minister (Home Affairs)

I want to step back from the nitty-gritty for a moment, and consider why the amendment is so fundamental. It goes to the heart of people’s objection to the Bill. The expectation of residents and citizens of the United Kingdom is that if they were to commit an offence and be caught by the police, they would go to court. They would be put before a jury and if found guilty they would be convicted.

However, we are talking about people who may never have committed any criminal offence. I get the feeling that the Government are saying, “We know who these people are, we know who the troublemakers are, and if we cannot get them through the normal conventional procedures”—they were established over many hundreds of years—“we will come up with a lower threshold so that we can catch the bad guys without having to worry about the details of the law.”

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

Does the hon. Gentleman agree that that is exactly what is happening with ASBOs?

Photo of Jeremy Browne Jeremy Browne Opposition Whip (Commons), Shadow Minister (Home Affairs)

The right hon. and learned Gentleman makes a reasonable point, but I do not wish to be waylaid.

A number of offences are described in the Bill as serious. Indeed, salmon fishing was mentioned earlier. Sadly, I do not own a salmon pond, but if I did I would doubtless find it deeply objectionable if others were illegally to fish in it. I have not visited the constituencies of all the Labour members of the Committee, so I do not know whether it would be regarded as a serious crime in those places, but I have my doubts. Then there are areas such as the pirating of DVDs. DVD pirating is an offence, and it might be one that people take seriously, but is it in the same category as some of the other offences in the Bill? In any case, the Secretary of State has the power to amend the list at any point.

As has been touched on, the sanctions are in some circumstances an extremely serious curtailment of the liberty of the individual, including, for example, the individual’s right to travel freely in the United Kingdom. That kind of restriction is normally associated with more draconian regimes than we have traditionally had in this country. Ultimately, somebody who breaches the conditions could find themselves spending five years in prison—a considerable period even if they might quality for the early release scheme that the Prime Minister outlined to his great discomfort in the House of Commons last Wednesday. In addition, their reputation as an individual, as a business man or business woman, or as a citizen could be compromised or even destroyed.

Photo of Jeremy Wright Jeremy Wright Conservative, Rugby and Kenilworth 11:45, 26 June 2007

I substantially agree with the hon. Gentleman’s remarks. Can he determine any difference between some of the restrictions that will be placed on individual liberty as a result of these orders, which the Minister described as preventive, and restrictions placed on individual liberty as part of a community order, which would be described as a punishment?

Photo of Jeremy Browne Jeremy Browne Opposition Whip (Commons), Shadow Minister (Home Affairs)

No, I cannot. To conclude, and before I press the matter to a vote, the essential point is that the individual liberties that everybody in this country is at risk of taking for granted are guarded by this House. It is the duty of hon. Members, including Labour Members who have chosen not to raise any objections to the points raised by Opposition Members during the past hour and 20 minutes or so, to safeguard those liberties. We must ensure that we are extremely vigilant about overturning centuries of legal practice, and on that basis I am keen to press for a Division.

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 9.

Division number 1 Nimrod Review — Statement — Clause 1

Aye: 6 MPs

No: 9 MPs

Aye: A-Z by last name

No: A-Z by last name

Question accordingly negatived.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

I beg to move amendment No. 53, in clause 1, page 2, line 7, leave out ‘appropriate’ and insert ‘necessary, just and proportionate’.

Photo of John Bercow John Bercow Conservative, Buckingham

With this it will be convenient to discuss amendment

No. 120, in clause 20, page 12, line 38, leave out ‘appropriate’ and insert ‘necessary, just and proportionate’.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

Amendments Nos. 53 and 120 were both tabled in my name and concern subsection (3), which relates to the serious crime prevention order itself. It says:

“An order under this section may contain— such prohibitions, restrictions or requirements; and

(b) such other terms; as the court considers appropriate for the purpose of protecting the public” and so forth. The court is not given any guidance as to the meaning of the word “appropriate.” It is as long as the Lord Chancellor’s foot, as used to be the expression in the courts. I am happy to say that it is no longer used. In the case of the present Lord Chancellor, as large as the Lord Chancellor’s tum, might be another approach one could use. It is not unparliamentary to refer to the fatness of a person, Mr. Bercow; at least, I have never heard that it is so. On subsection (3)—

Photo of John Bercow John Bercow Conservative, Buckingham

Order. It may not be out of order to refer to whether someone is fat, but it would be out of order for the right hon. and learned Gentleman to dilate on matters outwith the terms of the amendment.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

I model myself on you, Mr. Bercow—I have long admired your passages with Mr. Speaker in the main Chamber—however, I will stop doing so because you have told me not to.

We come to the serious point: what are the criteria on which the court should determine the matter? The Committee has already been referred to the breadth of clause 6(3), in which the extent of the order-making powers is sketched out. Although the Minister said that they are not punitive—that may not be the purpose; the purpose may be preventive—there is no doubt that the consequences are punitive because they can restrict people’s liberty in an extensive way, and guidance should be given to the courts. They should not simply be asked to determine whether it is appropriate; there should be more precise tests. They should be required to ask themselves whether it is necessary, just and proportionate to make one of these orders.

The Minister earlier used the word “proportionate” when he asked me whether I was really suggesting that the High Court would not make an order that was proportionate, and I reminded him of the language of my amendment. I am very anxious that the word “proportionate” should appear in the Bill because I wish to protect the civil liberties of my fellow citizens; whether or not they are criminals, they have their rights to be protected. The least we can do is to oblige the courts to ask themselves the question I have set out: is the order in question necessary, is it just, is it proportionate? To suggest that the word “appropriate” necessarily involves those tests is plain wrong.

Photo of Jeremy Wright Jeremy Wright Conservative, Rugby and Kenilworth

My right hon. and learned Friend said that all our fellow citizens have rights that are in need of protection, whether or not they are criminals. Does he agree that the point of the debate is that those subject to these penalties would not, in the Minister’s words, be criminals, because they would not be responsible for criminal offences?

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

Exactly. Even as I uttered the phrase I was conscious that I was only stating part of the fact, as I was going for brevity on this occasion. But my hon. Friend is entirely right: many of the people who will be affected by the orders will not have committed criminal offences. They will be people against whom it is said that they have facilitated someone else’s criminal offence. Surely the very least we can do for them is to ensure that the relevant term of the order is just, necessary and proportionate. It is the very least that a House that should be safeguarding the rights of its constituents should require.

Photo of Vernon Coaker Vernon Coaker The Parliamentary Under-Secretary of State for the Home Department

Let me start by repeating something that the right hon. and learned Gentleman said. It is important to place it on the record, lest there be any misunderstanding. I do not believe that any member of this Committee would play fast and loose with the civil liberties of citizens of this country. People may have different ideas about how to protect civil liberties, but I do not believe that any of us do not see them as important. As the hon. Member for Rugby and  Kenilworth said, we all also believe that everyone has rights. All of us on this Committee accept that. It is important to lay it on the table. I do not believe that any member of this Committee does not feel that the rights of individuals are important. There will be differences between us about how we protect those rights, but that does not undermine the fact that we support them and feel that the civil liberties of citizens of this country are important.

Amendments Nos. 53 and 120 seek to amend clause 1(3), and the similar provision for orders in the Crown court in clause 20, by changing the word “appropriate” to “necessary, just and proportionate”. Those provisions establish the test that the court must apply when deciding on the terms included in an order. Placing a requirement on the court to act justly and proportionately is unnecessary, because it simply reflects principles by which the court will already abide in making the orders. There is no need to tell the High Court to be just or proportionate in legislation. As I made clear in an earlier intervention on the right hon. and learned Gentleman, the High Court has an obligation as a public authority under human rights legislation to ensure that everything that it does is just and proportionate.

As for a requirement that the terms of an order be necessary, we believe that we have set the standard in clauses 1(3) and 25 at the right level, striking a 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 ask the right hon. and learned Gentleman to withdraw his amendments. We have already discussed the principles running through clause 1 and have considered the test in clause 1(1) in detail. We believe that the orders will provide a valuable new tool for law enforcement, and that the test in clause 1 lies at the heart of the legislative and procedural framework that will ensure that they are proportionate.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

The Minister said that nobody in this Committee was seeking to play fast and loose with civil liberties, but we must consider consequences, not intent. What will happen when the Bill passes in its present form? I have no doubt that civil liberties will be seriously infringed.

The Minister suggests that the word “appropriate” necessarily encapsulates the concepts of necessity, justice and proportion. I do not agree. It means something different. It may include them in part, but it is not obliged to, and there may be things included in “appropriate” that fall outside the test of necessity, justice and proportion. I did not hear him say in any terms that my test was wrong in principle; he merely said that it was unnecessary. I do not share that view, and for that reason I will not withdraw the amendment. I hope that it will be voted on.

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 9.

Division number 2 Nimrod Review — Statement — Clause 1

Aye: 6 MPs

No: 9 MPs

Aye: A-Z by last name

No: A-Z by last name

Question accordingly negatived.

Question proposed, That the clause stand part of the Bill.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham 12:00, 26 June 2007

I am not going to repeat at length the points that I have made already because that would be otiose. The Committee will by now have learnt that I am a strong enemy of the clause. I could be persuaded that it is right to make a serious crime prevention order in respect of a person who has been convicted of a serious offence, provided that the concept of a serious offence is redefined. We will come to that in the next group of amendments. I think that there are no circumstances in which I could sensibly be persuaded that the facilitator should be the subject of a serious crime prevention order unless the standards of proof are raised substantially. That has not happened as a result of the Committee’s decisions.

I repeat that these are orders of a very, very draconian kind. They can be made against people who have committed fairly trivial offences—an issue that we will come to. They can also be made in respect of people who have committed no criminal offence at all. It is no good saying that they are not punitive, but preventive. One has to look at the consequences. Although the motives might be different, the consequences are much the same; indeed, they can be worse. I hope that the Committee will take the view that the clause should not be passed in its present form.

Photo of Nick Herbert Nick Herbert Shadow Minister (Home Affairs)

We, too, have serious concerns about the operation of the clause. I have tabled proposals, but because they amount to new clauses, they cannot be considered now. They would introduce a review regime in respect of the operation of serious crime prevention orders. Since the orders are analogous to control orders, we feel that it is perfectly reasonable that, as happens with control orders, this place should appoint an independent reviewer to advise on their operation and subject them to a regular review so that we can be certain of how they are being used.

A difficulty for the Committee in deciding whether to support this power is that we are unclear as to the extent to which it may be used and how many orders may be made. Many concerns about the ambit of the orders have already been set out and we will discuss them further in respect of later amendments. However, it is of concern to us that when given the opportunity, the Minister chose not to clarify the evidential burden in the Bill—a matter central to the operation of serious crime prevention orders. His argument that different evidential burdens are required in different parts of the legislation frankly does not wash, because he could easily have accepted an amendment just to the main substantive provision, clause 1(1)(a), but he did not.

On the operation of the clause, it is also important that we examine how exactly the powers may be employed and in what particular circumstances. It is clear from what the Government have said that the provision may be used as an alternative to prosecution. Indeed, the July 2006 paper, “New powers against organised and financial crime”—we have still not clarified whether it is a White Paper or a Green Paper—makes it clear on page 31:

“There are also...likely to be cases where orders are an appropriate tool as an alternative to prosecution. In practice, law enforcement and prosecutors need to make difficult decisions around putting cases together for court. The courts have reasonable practical and case management reasons for objecting to over-large trials. But in the case of organised crime investigations, there may be significant numbers of individuals at the fringes who cannot be pursued in the main trial, and for whom a separate trial is not thought worthwhile. Such individuals’ role might have been marginal and not warrant a prosecution, but an order might be sufficient to deter future criminal activity.”

I regard that position as absolutely unacceptable. It is effectively an argument of resources to say that the state will not mount a criminal prosecution, not because of a lack of evidence, but because it is, in the words of the Green Paper, “not thought worthwhile” to pursue a prosecution. Of course, a prosecution could not proceed unless the Crown Prosecution Service was satisfied that there was a reasonable chance of its success in the first place. We fear not only that the measures will become an alternative to prosecution, but that they are intended as such, and that the authorities will choose the line of least resistance and apply for the order.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

Before my hon. Friend moves on from the Green Paper, I should like to make the point that at the bottom of page 31, it includes the words:

“and for the court in deciding whether it would be proportionate to make it.”

In the Green Paper, the concept of proportionality was raised and recommended.

Photo of Nick Herbert Nick Herbert Shadow Minister (Home Affairs)

My right hon. and learned Friend has successfully made his point. Of course, the court will show regard to what the Green Paper says is the intention of the legislation. To be fair to the Government, I must say that they have never demurred from outlining their objective, which is to set out an alternative——in part——to prosecution, in relation to the prevention of serious crime.

It is not just the official Opposition who have concerns about the potential for the legislation to be used as an alternative to prosecution. The Law Society has expressed similar concerns:

“Where there is evidence that a person is engaged in criminal activity, that evidence should be gathered with a view to prosecuting them. We fear the proposed orders are a measure of expediency to deal with cases where a prosecution is not possible because there is insufficient evidence.”

Photo of Vernon Coaker Vernon Coaker The Parliamentary Under-Secretary of State for the Home Department

To eliminate any doubt, I should point out that where an offence can be prosecuted, the Government would expect it to be prosecuted. If someone commits a criminal offence that requires prosecution, we would want them to be prosecuted. We are talking about the reduction of harm and the  prevention of future crime. The measures are serious crime prevention orders. Where appropriate, the Government would expect people to be prosecuted.

Photo of Nick Herbert Nick Herbert Shadow Minister (Home Affairs)

It is all very well for the Minister to say that. The Government’s Green Paper sets out a number of case studies. Case study D, on page 33, says:

“R runs a business inviting people to participate in bogus ‘competitions’ in return for personal details. In practice, the prizes offered are almost worthless, and there is no commercial rationale for the operation. The sole purpose of the mailshots is to identify likely future candidates for advanced fee fraud. These frauds are either carried out by R, or he sells on his mailing lists. Law enforcement applies for a prevention order prohibiting R from engaging in any activity involving large scale mailshots.”

The Green Paper envisages that, in those circumstances, the serious crime prevention orders will be used to prevent the individual from undertaking such fraudulent activity. If there is evidence, as set out in the case study, that the individual is engaged in that activity, why would not that individual be prosecuted? If it is due to insufficient evidence, that gives rise to the question whether potentially, on a lower evidential burden than would be accepted in a criminal trial, greater restrictions could be placed on his liberty than would be applied on criminal conviction. They could last for five years, but would potentially be renewable by the High Court indefinitely. It is the uncertain ambit of the provisions and the seriousness of the restrictions that can be imposed with regard to an individual’s freedom that cause us to be concerned about the scope of clause 1, if not its intention.

Magna Carta’s key provision on the liberty of individuals still remains in force in English law. Chapter 29 of Magna Carta states:

“No Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the Land.”

Of course it is open to this place to change the law of the land, but as the hon. Member for Taunton said, we should use the greatest care before allowing any incursion on that fundamental principle of liberty. Without the reviews that apply in relation to control orders, and without the parliamentary safeguards or the placing of the evidential burden on a statutory basis, and bearing in mind the likely attitude of the Government to subsequent amendments about the scope of the Bill—going by what we have heard from the Government this morning, a disagreement about that is likely—I am not persuaded that we can accept serious crime prevention orders in the form in which they are now presented.

Question put, That the clause stand part of the Bill:—

The Committee divided: Ayes 9, Noes 6.

Division number 3 Nimrod Review — Statement — Clause 1

Aye: 9 MPs

No: 6 MPs

Aye: A-Z by last name

No: A-Z by last name

Question accordingly agreed to.