Clause 11

Serious Crime Bill [Lords] – in a Public Bill Committee at 3:00 pm on 28 June 2007.

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Notice requirements in relation to orders

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

I beg to move amendment No. 107, in clause 11, page 8, line 7, at end insert—

‘(1A) The subject of a serious crime prevention order is not bound by it unless, not less than 56 days before the date on which the application for the making of the order was heard, the subject was served with a notice setting out the terms of the proposed order together with a copy of all the written evidence and a summary of all the oral evidence that would be relied upon.’.

Photo of Joe Benton Joe Benton Labour, Bootle

With this it will be convenient to discuss amendment No. 108, in clause 11, page 8,line 11, at end insert

‘but if a court is satisfied that the subject of a serious crime prevention order has not received that notice and is not otherwise aware of its terms, the notice shall be deemed not to have been served.’.

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

These amendments have two quite separate purposes. The purpose of the first is that the person against whom the order is sought should be given due notice of the terms of the order and of the evidence that is to be relied upon. The purpose of the second amendment, differently, is that in appropriate circumstances the deemed notice will be disapplied.

May I explain briefly what I have in mind? It is a matter of natural justice that a person against whom an order is sought should be told in good time the terms of that order. It is in accordance with the principles of natural justice that the prospective subject of the order should have a clear indication of the nature of the case being put against him—or her—so that he can respond to it.

It is not clear from the Bill what the procedure will be for giving notice of the orders sought for satisfying the court of the requirements. The Bill is silent on that point; perhaps rules will be made later that will give  guidance. However, as a matter of general principle, due notice should be given of the terms of the relief being sought and of the nature of the evidence.

The second amendment relates to the effect of the notice. There is a provision for deemed notice, which is to be obtained by sending it by recorded delivery tothe last known address. Consequences flow from that, namely, that the person is bound by the order and if that person is in breach of the order, penal sanctions attach.

However, there may well be wholly reasonable circumstances when, notwithstanding the fact that the notice was sent to the last known address, it was not received. The person who was the subject of the order but who did not receive it should be given the ability to go to the court and ask for the notice to be disapplied. I am prepared to accept that this is one area in which the reverse burden of proof is probably appropriate, and the onus of proving non-receipt should lie with the person to be affected by the order. In terms of natural justice, both the provisions, or something like them, should be incorporated in the Bill.

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

If the right hon. and learned Gentleman will bear with me, I may say something at the end of my remarks that will be helpful to him, to show that we try to listen—

Photo of Crispin Blunt Crispin Blunt Opposition Whip (Commons)

Why not say it at the beginning?

Photo of Vernon Coaker Vernon Coaker The Parliamentary Under-Secretary of State for the Home Department 3:15, 28 June 2007

Mr. Benton, I have pointed out the number of times we agreed with the Opposition in the House of Lords and amended the Bill accordingly. We tabled an amendment on armed robbery, which we included in the schedule. The schedule was voted against, even though it included something that the Opposition wanted. I was about to say something reasonably positive to the right hon. and learned Gentleman and I get scoffed at—my confidence is seeping away as we continue.

On amendment No. 107, the civil procedure rules provide for notice to be given to the proposed subject of an order when an application for an order has to be made. Under those general rules, the notice period is usually three days. I am afraid that—this is where I differ with the right hon. and learned Gentleman—I cannot support the idea of acquiring a notice periodof 56 days because I believe that that would be impractical. It could have the perverse effect that, where an order could prevent an immediate harm, law enforcement and the applicant authority would have to wait nearly two months before they could seek an order in the High Court. The people who might be harmed by the serious criminal behaviour that the order is designed to prevent would want us to accept that such a delay in preventing harm was inappropriate.

I am confident that, as part of giving effect to the overriding objective, an adjournment could be granted, if to do otherwise would cause injustice. However, with  regard to the right hon. and learned Gentleman’s amendment, we will consider what an appropriate period of time would be. It might be that three days is too short, although we feel that 56 days is too long.We want to consult the applicant authorities andother authorities. We would like him to withdraw the amendment, with my commitment that we will look at the issue. However, to be clear, we think that 56 days is too long.

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

The Minister might be right in saying that 56 days is too long; I can see arguments against me on that point. I would also be pleased to know whether his commitment extends to giving notice of the evidence on which the application would depend, because there is no current obligation for the authorities to tell the prospective subject of the order what that evidence is.

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

The right hon. and learned Gentleman is pushing it now, and all I can say is that I havemade a commitment with respect to the amendment. Without making a commitment, I will look at the second point that he made with respect to the amendment.

Amendment No. 108 focuses on the requirement in clause 11 that an order cannot take effect unless the subjects have either been given a notice setting outthe terms of the order or were represented at the proceedings at which the order was made. Under the amendment, no notice would have been given if it could be shown that the notice was not received. The provision is not necessary because section 7 of the Interpretation Act 1978 already makes provision about the service of notices in the post. In particular, it provides that the rules on service by post will not apply if it appears that a notice served by post was not received. Having made those comments, I wonder whether the right hon. and learned Gentleman would consider withdrawing his amendment.

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

Breaking the habit of a lifetime, I intend to be collegiate.

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

But not a team player. I understand the point about 56 days and I am perfectly prepared to accept, as I have already indicated, that the Minister might be right in saying that 56 days is too long. I very much hope that the Minister will accept that natural justice requires that the person who is made the subject of the order knows the nature of the case and, preferably, the evidence that is relied upon when the order is sought. But in the spirit of non-team-playing collegiate behaviour, without prejudice to what I may do on Report, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 11 ordered to stand part of the Bill.

Further consideration adjourned.—[Mr. Alan Campbell.]

Adjourned accordingly at nineteen minutes past Three o’clock till Tuesday 3 July at half-past Ten o’clock.