Serious offences

I beg to move Amendment No. 24, in schedule 1, page 48, line 25, at end insert—

‘Armed robbery etc.

4A (1) An offence under section 8(1) of the Theft Act 1968 (c. 60) (robbery) where the use or threat of force involves a firearm, an imitation firearm or an offensive weapon.

(2) An offence at common law of an assault with intent to rob where the assault involves a firearm, imitation firearm or an offensive weapon.

(3) In this paragraph—

“firearm” has the meaning given by section 57(1) of the Firearms Act 1968 (c. 27);

“imitation firearm” has the meaning given by section 57(4) of that Act;

“offensive weapon” means any weapon to which section 141 of the Criminal Justice Act 1988 (c. 33) (offensive weapons) applies.’.

With this it will be convenient to discuss the following: Amendment No. 23, in schedule 1, page 48, line 25, at end insert—

‘Robbery using an offensive weapon or firearm

4A An offence under section 8(1) of the Theft Act 1968 (c. 60) where it is alleged that, at some time during the commission of the offence, the defendant had in his possession a weapon specified by the Secretary of State under section 141(2) of the Criminal Justice Act 1988 (c. 33), or a firearm or imitation firearm (as defined by section 57 of the Firearms Act 1968(c. 27)).’.

Government amendment No. 29.

I hope that I can help the hon. Member for Arundel and South Downs and his colleagues with the Amendment. I do not intend to delay the Committee for long, because hon. Members might wish to make other points later in our discussion. We have discussed the reasons behind our definition of serious crime in schedule 1, as well as those for giving the court discretion in respect of that definition. In dealing with this group of amendments, we will consider the contents of the schedule.

Some concern has been expressed about why we have included some offences and left out others that it might have seemed appropriate to include. To the right hon. and learned Member for Sleaford and—

Sleaford and North Hykeham.

Do you know, I am absolutely terrified of getting the name of the right hon. and learned Gentleman’s Constituency wrong? I am going to write it in big letters. In response to what he said, I should like to say that I believe that prostitution and keeping a  brothel are serious offences. It is right that they should be listed in the schedule and that, in relation to such an offence, the High Court should be able to consider whether a serious crime prevention order is appropriate in the circumstances.

The schedule is based to a large extent on schedule 2 to the Proceeds of Crime Act 2002, which sets out “lifestyle offences” in which serious criminals regularly engage. In developing the list for the purposes of this legislation, we also thought about other serious offences against which it might be suitable to use the orders. Two criticisms of the orders have been made. The first questioned why we did not include offences against a person, which I think we dealt with in a previous discussion. The second criticism related to environmental offences. The hon. Member for Taunton, among others, raised that point. Those offences were included on the recommendation of the Association of Chief Police Officers lead for wildlife and environmental crime. Environmental crime, such as the poaching of fish or dumping of waste, can cause both ecological and economic harm to local communities. Ecological harm, in particular, is the perfect example in which prevention is most assuredly better than a cure, which makes the orders a potentially valuable tool. The inclusion of environmental offences is extremely important.

I recognise that it easy to make a debating point of sorts by saying that a serious crime prevention order will be made against anybody who takes one fish from the lord of the manor’s river or trout farm. In response, I say that we are talking about serious crime. As we all know—I said it this morning and Lord Dear said it—chucking an explosive into a pond is more serious than taking the odd fish, although that is illegal as well.

The Government amendments relate to two areas where we think it is important for the orders to be an option. In response to a helpful suggestion from a colleague of the hon. Member for Arundel and South Downs in Another place, Baroness Anelay, we agreed that we could consider adding robbery to the schedule, where it is committed with a firearm or offensive weapon. There is no specific offence of armed robbery, but we believe that parliamentary counsel’s drafting of Government amendments Nos. 24 and 29 meets the commitment that we made in the other place. I hope that those Government amendments meet the concerns of Baroness Anelay, and that the hon. Gentleman will not press Amendment No. 23.

I am grateful for the Minister’s explanation and for his Amendment. My noble Friend Baroness Anelay in Another place tabled the original amendment to bring armed robbery within the scope of the offences listed in the Bill as a probing amendment. It was designed, as the Minister picked up on, to try to tease out why certain offences that do not seem to be so serious, such as environmental offences, including salmon fishing, have been included in the schedule, yet offences involving significant violence, which the public would consider to be part of the problem of serious crime, have not been included. That was her purpose in tabling the amendment in relation to armed robbery.

My noble Friend then received significant support from the industry, which was keen, despite its reservations about the operation of serious crime prevention orders, to which I referred this morning, to have a specific offence included that would cover armed robbery. The British Bankers Association pointed out that last year its members suffered 119 armed robberies, incurring significant losses and resulting in injuries to staff and customers. There is growing awareness in and outside this place of the problem of armed robbery and the particular pressure that it puts on the industry and on staff who are victims of attacks.

The Government agreed to look at the amendment to see whether it could be tidied up, and have now tabled their own. I do not wish to sound churlish, but while I am grateful to them for accepting my noble Friend’s proposal, I have some reservations about including another offence in the schedule, given that the Government have made no concessions in relation to the operation of the orders.

The way to resolve the matter is to vote against schedule 1 stand part.

I am grateful to my right hon. and learned Friend, but that strikes me as going dangerously down the line of John Kerry and his explanation of why he votes for things before he votes against them. It is not surprising that this puts us in something of a dilemma because, on one hand, there is a harm that we want dealt with, which is why we raised the problem initially. On the other hand, we have serious concerns, which we set out this morning, about the operation of the orders, and the Government have not felt able to make any concessions. Nevertheless, if there is to be a schedule, it would be sensible to include the specific harm in it and within the definition of serious crimes, rather than leaving it to a court to decide whether it is a serious crime under the provisions that we unsuccessfully objected to a few moments ago.

I know that the Minister was trying to be helpful in tabling the Amendment, and I am grateful for that. I know that the industry will be grateful. It has found itself in precisely the same position as us—it expressed concern about the operation of serious crime prevention orders and argued strongly that there should be prosecution when possible. I referred this morning to its concerns about the orders, but it wants a widening of the offences if the orders must go forward. On that basis, I would be happy not to press my amendment.

I assure the hon. Gentleman that he did not sound churlish, and I understand the point that he is making. While not conceding on the principle of the Bill, I accept his point about trying to improve it, and I hope that I have tried to take account of points that are made and not only during our discussions of this Bill. That applies particularly when there is a consensus that a Bill can be improved. To reassure the hon. Gentleman, I should say that I did not find his remarks churlish at all. I am pleased that we have been able to add something to the Bill which his noble Friend wanted to be added.

Amendment agreed to.

I beg to move Amendment No. 25, in schedule 1, page 48, line 27, leave out ‘either’ and insert ‘any’.

With this it will be convenient to discuss Government amendments Nos. 26 to 28 and Government amendments Nos. 30 to 33.

We have already discussed the reasons behind and structure for the schedule. The Government amendments relate to two areas in which we think the orders should be available. Amendments Nos. 25, 26, 30 and 31 add the offence of acquisition, use and possession of criminal property under section 329 of the Proceeds of Crime Act 2002. That offence is considered to be one committed by organised criminals. It can attract a financial reporting order under the Serious Organised Crime and Police Act 2005. Amendments Nos. 27 and 32 add the offence of false accounting. Finally, we tabled amendmentsNos. 28 and 33 because of the growing evidence that serious criminals are targeting the tax system in an increasingly systematic and large-scale manner. There is a direct impact from serious crime on the Exchequer in respect of indirect taxes and excise duties; several billion pounds are lost to the Exchequer through VAT and excise fraud. There is also evidence that criminals are attacking the tax credit system and evidence of systematic attacks by organised criminal gangs. The measures can provide a useful means of preventing the harm caused by such crimes.

I welcome you to the Chair, Mr. Benton. I share the delight of other Members at serving under your chairmanship, and thank you for calling me to speak.

I seek reassurance from the Minister about tax credits, the issue that he has just raised. All hon. Members will have had huge postbags of letters from constituents who have had issues with the complexity of the tax credit system and felt that they have been wrongly accused of trying to defraud—through overpayment, or whatever. Many will be concerned at the failings of the system’s complexity.

The provisions of this Bill may be applied to someone who has been accused of or investigated for some offence; is it the Government’s intention that those provisions should be confined to people who were offending in a systematic way against that system? There are those who have had a one-off individual issue with the system and may have been found, officially, to have committed fraud. That finding, however, may well have resulted from some inaccuracy in the form filling.

The hon. Gentleman makes an important point; clearly, we are not necessarily seeking to attack particular individuals. The issue is about serious crime and systematic fraud. I hope that I have reassured the hon. Gentleman. We are not after those who have inadvertently misclaimed something; we want to prevent crime in the future and tackle systematic fraud.

Amendment agreed to.

Amendments made: No. 26, in schedule 1, page 48, line 31, at end insert—

‘(c) section 329 (acquisition, use and possession of criminal property).’.

No. 27, in schedule 1, page 48, line 33, at beginning insert—

‘() An offence under section 17 of the Theft Act 1968 (c. 60) (false accounting).’.

No. 28, in schedule 1, page 48, line 42, at end insert—

‘Offences in relation to public revenue

6A (1) An offence under section 170 of the Customs and Excise Management Act 1979 (c. 2) (fraudulent evasion of duty etc.) so far as not falling within paragraph 1(2)(c) or 3(1)(b) above.

(2) An offence under section 72 of the Value Added Tax Act 1994 (c. 23) (fraudulent evasion of VAT etc.).

(3) An offence under section 144 of the Finance Act 2000 (c. 17) (fraudulent evasion of income tax).

(4) An offence under section 35 of the Tax Credits Act 2002 (c. 21) (tax credit fraud).

(5) An offence at common law of cheating in relation to the public revenue.’.

No. 29, in schedule 1, page 52, line 2, at end insert—

‘Armed robbery etc.

18A (1) An offence under section 8(1) of the Theft Act (Northern Ireland) 1969 (c. 16 (N.I.)) (robbery) where the use or threat of force involves a firearm, an imitation firearm or an offensive weapon.

(2) An offence at common law of an assault with intent to rob where the assault involves a firearm, imitation firearm or an offensive weapon.

(3) In this paragraph—

“firearm” and “imitation firearm” have the meaning given by Article 2(2) of the Firearms (Northern Ireland) Order 2004 (S.I. 2004/702 (N.I.3));

“offensive weapon” means any weapon to which section 141 of the Criminal Justice Act 1988 (c. 33) (offensive weapons) applies.’.

No. 30, in schedule 1, page 52, line 4, leave out ‘either’ and insert ‘any’.

No. 31, in schedule 1, page 52, line 8, at end insert—

‘(c) section 329 (acquisition, use and possession of criminal property).’.

No. 32, in schedule 1, page 52, line 10, at beginning insert—

‘() An offence under section 17 of the Theft Act (Northern Ireland) 1969 (c. 16 (N.I.)) (false accounting).’.

No. 33, in schedule 1, page 52, line 19, at end insert—

‘Offences in relation to public revenue

20A (1) An offence under section 170 of the Customs and Excise Management Act 1979 (c. 2) (fraudulent evasion of duty etc.) so far as not falling within paragraph 15(2)(c) or 17(1)(b) above.

(2) An offence under section 72 of the Value Added Tax Act 1994 (c. 23) (fraudulent evasion of VAT etc.).

(3) An offence under section 144 of the Finance Act 2000 (c. 17) (fraudulent evasion of income tax).

(4) An offence under section 35 of the Tax Credits Act 2002 (c. 21) (tax credit fraud).

(5) An offence at common law of cheating in relation to the public revenue.’.—[Mr. Coaker.]

Question proposed, That this schedule, as amended, be the First schedule to the Bill.

With this we may take Amendment No. 95, in Clause 5, page 5, line 20, leave outsubsection (4).

The object of Amendment No. 95, which stands in my name, is to remove subsection (4) of Clause 5, which gives the Secretary of State, by order, the power to amend schedule 1. By that power he can either add to or delete from the list of offences that are categorised in the schedule.

I am very much against that because the powers are exercised by affirmative resolution—

Order. I am sorry to interrupt the right hon. and learned Gentleman, but the noise level is getting rather high; there are too many social conversations going on. I ask hon. Members to speak sotto voce.

As you know, Mr. Benton, the affirmative resolution procedure is not amendable. Therefore, we are enabling the Secretary of State to add to these offences by way of an unamendable order, which is a very unattractive proposition. For that reason, I hope that the Committee will rally behind amendmentNo. 95.

The more general issue is whether schedule 1 should stand part of the Bill. I shall be brief, as I have rehearsed my arguments many times. The Committee by now will understand that I take a strong objection to this part of the Bill. I am very much against the definition of a serious offence—I use the language of the Bill—by reference to categorisation. I have expressed my reasons already; it is wrong in principle and if we are to have serious crime prevention orders they should be made by reference to the penalties imposed by the courts rather than by categorisation.

My objection is to the whole architecture of the Bill as set out in schedule 1, which is reinforced by the fact that in respect of facilitation, the facilitator may be committing no offences known to the law but will be caught if he or she is facilitating an act that is specified in the schedule, which may be pretty trivial.

I do not like procedures being carried out, therefore my argument against schedule 1 relates to the whole structure of the Bill. I would like to think that in a spirit of collegiate support my front bench will take the same view, but if they do not I shall, in any event, vote against them.

I rise, in the spirit of collegiate support, to support my right hon. and learned Friend in relation to Amendment No. 95, in which he seeks to remove the provision in Clause 5(4) that enables the Secretary of State by order to amend schedule 1, either by taking offences away or, more seriously, by adding them.

I signalled on Second Reading that the official Opposition were unhappy with the provision. It seems wrong in principle, even if the statutory instrumentis subject to the affirmative procedure, that the Government should take the power to add to the list of  offences that can be used to make serious crime prevention orders. We have expressed concerns about that.

If it is necessary to add offences to the legislation in the future, it should be done by primary legislation. After all, plenty of Home Office Bills are likely to come forward as vehicles for such amendments. Judging by the number of Home Office Bills we have had so far, there will be no shortage of legislative opportunities. The nature and scope of the orders mean that, for consistency’s sake, given our concerns about the operation of the powers, we cannot support granting an open-ended power to the Government of the day to add to the list of offences.

As to the wider schedule, I am inclined to agree with my right hon. and learned Friend. After all, we objected to clauses 1 and 2 in the first place because the Government have failed to meet our concerns about the operation of the orders.

An issue for us is that if the schedule of specific offences were to disappear, it would leave in the Bill only the power for courts to determine whether offences were sufficiently serious. Nevertheless, I am content to oppose the schedule on the basis that we oppose that power as well. Therefore, for consistency’s sake, in spite of the addition of the offence of armed robbery that was proposed in the other place, we shall oppose the schedule.

That is why I prefaced my remarks on the previous group of amendments by saying that I knew that the hon. Gentleman was not being churlish. I slightly suspected that he would ask his colleagues to vote against the schedule even though we had included armed robbery. I understand that he is not being churlish, even though we agreed to the earlier Amendment.

As the hon. Gentleman said, amendment No. 95 would remove the order-making power of the Secretary of State to add to the list in the schedule. I have already outlined the reasons why the schedule is important, not least in providing guidance for the courts in exercising their discretion. The order-making power is necessary to ensure that the list is kept current, and to provide the most effective tool for the courts. Even five to 10 years ago, we probably could not have anticipated the impact that the use of computers would have in enabling serious targeting of the Exchequer, which occasioned the amendments in the last group. We need to be able to adapt to emerging trends in crime and the rapid diversification of criminal activity that I alluded to earlier. That is why the order-making power is necessary.

Just for my elucidation, could the Minister explain the process that his Department went through in deciding the make-up of the schedule?

As the hon. Gentleman knows, we went to consultation. We spoke to stakeholders and the police, which is one of the reasons why we included environmental crime in schedule 1. ACPO told us that it should be included. We spoke to many different people. The amendments that we just accepted indicate that we even took advice from Conservative Lords as to  what should be in the schedule. A broad church of people have been involved in deciding what should be included. I thank the hon. Gentleman for giving me the opportunity to make that interesting point.

We have already discussed the context for the schedule in relation to Clause 2(2), which sets out what constitutes a serious offence. This includes the necessity of providing the courts with the discretion to treat an offence as if it were specified in schedule 1. The schedule therefore provides not only a list of offences that will always be capable of attracting an order, but guidance to the courts on the types of offence that could form the basis of an order.

The schedule is based on schedule 2 to the Proceeds of Crime Act 2002. That set out what constituted lifestyle offences for the purposes of that legislation—offences that are committed by serious criminals to fund and maintain luxurious lifestyles at the expense of their victims. All these offences should be capable of attracting an order. However, the purposes of the Bill go further than those of the 2002 Act, so we thought it necessary to see whether it was appropriate, through this legislation, to prevent the harm caused by serious criminals in relation to other offences. As a result, we added certain categories of offence to this schedule. Those include the environmental offences that I mentioned earlier, along with offences relating to fraud, and corruption and bribery.

On the point about the Home Secretary being able to add extra categories, how would the Minister answer a constituent of mine who approached me to express concern that at some future point, a less benign and enlightened Home Secretary than the one who exists until this time tomorrow may seek to impose, through this provision, various draconian measures that would pose a great threat to the liberties of the citizens of this country? Indeed, they would apply to people who had committed no criminal offence whatever. Is that not, in the eyes of many people in this country, the slippery slope towards imposing by order a set of measures that would potentially severely curtail our liberties?

I would say to the hon. Gentleman’s constituent what I would say to my own. Whatever the Home Secretary decides should be able to be included in the schedule, it is not the Home Secretary who will decide whether someone should be subject to a serious crime prevention order. A High Court judge will take that decision. I would also say to the hon. Gentleman’s constituent, as I have said to a number of hon. Gentlemen in Committee and to my hon. Friends, that the High Court is, for the purposes of the Human Rights Act 1998, a public authority. Therefore, the High Court is bound to act in a way that is consistent with human rights legislation. Should a judge in that Court err, as I said to the right hon. and learned Member for Sleaford and North Hykeham earlier, there is an appeal process.

It is an important part of our democracy—an important part of our constitution—that we have a Parliament that makes the law. We have a part of our democracy that sets down what we believe to be right and proper, but it is a matter for the courts to protect certain freedoms of individuals, to protect the civil  liberties of individuals and to apply the law. That would be a perfectly reasonable response to reassure the constituent of the hon. Member for Taunton.

What would my hon. Friend say to a constituent of mine who said to me, “What are the Government doing, allowing criminals to develop their crime in the face of new technology and not being prepared to act against that?”?

I would say to my hon. Friend’s constituent that that is why the Bill is before Parliament. Serious crime prevention orders are part of a range of measures that the Government are taking to tackle not only antisocial behaviour, but serious crime that causes much harm to my hon. Friend’s constituents, as it does to mine.

Mr. Browne rose—

Let me just develop the point. It is interesting and it pervades the entire debate that we are having on the Bill. There is always debate, discussion and disagreement about where the line is drawn between individual liberty and public protection. The interface between those two concepts is always a subject of tension and debate. I do not believe that there are many Committee members who do not sometimes have people coming to them to ask exactly the question that my hon. Friend set out. That question is not about the civil liberties of criminals or of people who might, under the provisions of the Bill, be the subject of serious crime preventions orders. The question is: “What about my civil liberties, and what about the fact that I see things happening in my community that I want to have tackled?”

We understand that there is a range of options. Of course, prosecution is appropriate in the Majority of cases, but the Bill is about civil orders that will prevent crime. My hon. Friend’s constituents, and mine, are as concerned about their own civil liberties and human rights as about those of others.

I understand the point that the Minister is making. However, I differ from the views of the hon. Member for Colne Valley in relation to the assumption that the state will always have benign intentions—in every circumstance, and for ever more. Is the Minister wholly and 100 per cent. satisfied that, if the British National party won an overall Majority in a General Election and sought to make it a serious offence, for example, for people to have sexual relations with people of different ethnicity, that party would not be aided in their attempt to introduce such a measure by what we are being asked to vote for?

I just do not see that analogy at all.

Why not?

I cannot see that happening. The hon. Gentleman throws his hands up, but at the end of the day the judge in the High Court will have to act proportionately and in accordance with the Human Rights Act. In those circumstances, I cannot imagine  the sort of scenario that the hon. Gentleman painted. I have more confidence in the High Court judges and the judicial process of this country than that.

The law on fraud is now set in the Fraud Act 2006. Many frauds are serious and organised, and serious criminals might also commit fraud as a way to finance their other criminal activities, which is why offences of fraud are included in the Bill. The inclusion of bribery and corruption offences demonstrates the Government’s commitment rigorously to enforce Laws and sanctions against international bribery and corruption, and the schedule reflects the breadth of operation of serious criminals in this country.

It would be impossible to list every type of crime that serious criminals could commit in order to take advantage of people in the rest of society. I therefore hope that the Committee will resist the Amendment and support the inclusion of the schedule.

Question put, That schedule 1, as amended, be the first schedule to the Bill:—

The Committee divided: Ayes 9, Noes 7.

Question accordingly agreed to.

Schedule 1, as amended, agreed to.