Clause 18

Serious Crime Bill [Lords] – in a Public Bill Committee at 11:45 am on 3 July 2007.

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Variation of orders

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

Photo of John Bercow John Bercow Conservative, Buckingham

With this, it will be convenient to discuss new clause 2—Review of orders —

‘(1) The relevant applicant authority shall inform the High Court in England and Wales of any change in circumstance which may entitle the person who is subject to the order to apply for a variation or discharge.

(2) The relevant applicant authority shall inform the High Court in Northern Ireland of any change in circumstance which may entitle the person who is subject to the order to apply for a variation or discharge.’.[Mr. Jeremy Browne.]

Photo of Jeremy Wright Jeremy Wright Opposition Whip (Commons)

I have a specific concern regarding clause 18, which I hope that the Minister can reassure me about, that relates to the provisions dealing with applications to vary an order that may be made by the relevant applicant authority. I assume that the situation envisaged is that the authority that originally sought an order and had it granted wishes to go back to the court for a variation on that order. The conditions under which the authority is able to do that, as set out in clause 18, are different from the conditions faced by the person subject to an order who then wishes to go back to court to have it varied. That causes me a little concern.

Clause 18(4), which deals with the conditions attached to the person subject to the order, states:

“The court must not entertain an application by the person who is the subject of the order unless it considers that there has been a change of circumstances affecting the order.”

By comparison, however, clause 18(8) states:

“A variation on an application under subsection (3)(a)”— in other words, an application for variation by the relevant applicant authority—

“may include an extension of the period during which the order, or any provision of it, is in force (subject to the original limits imposed)”; in other words, the five-year time limit. But in the case of an applicant authority making an application for variation, there is no requirement regarding a change of circumstances. I am concerned about that, simply because I do not think that the Government would wish to create a position in which the relevant applicant authority can have another bite of the cherry, in order to obtain a more stringent set of restrictions on the liberty of the person subject to the order than it was able to get in the first place.

The courts should not be tied up with repeated applications by the relevant authority, just to get a few more restrictions than were obtained in the first place. The Minister said earlier in relation to a different clause that it would be for the court to decide what sort of restrictions are appropriate and for how long. That was in connection with the argument that we had about the proper duration of the orders. It would not be right in that context for the relevant applicant authority to keep coming back to court to make that application. Can the Minister explain why the requirement that there should be a change of circumstances affecting the order should not apply equally to applications for variation made by the relevant authority, as well as to those made by the individual subject to the order?

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

I just want to make a brief contribution because new clause 2 is tabled in my name, and because it is a complicated clause compared with others.

At present there is no obligation on the state to keep the circumstances of the order under review. That obligation to apply for a discharge or a variation order rests with the defendant. My enthusiasm is to try to make the state more accountable for its actions by placing that burden of keeping the order under assessment, and to ensure that if there is a consideration of discharge or a variation to the order, it is obliged to undertake that.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham 12:00, 3 July 2007

I should like to make a number of specific points. First, would the hon. Member for Taunton forgive me if I disagreed with new clause 2? I do not think that it would always be the case that the enforcement agency would know about a change in circumstances. In general terms, the change of circumstances would be known, if not exclusively, then largely to the person who is the subject of the order. My feeling is that it would be unfair to place that obligation on the enforcement agency unless it had particular notice of a change of circumstances. To that extent, I do not agree with the hon. Gentleman, although I understand and agree with the overall motives of what he is describing.

I should like to make three specific points. First, I have some difficulty in understanding the real purpose of clause 18: whether it is designed primarily to make current orders more onerous, or less onerous. When one looks at clause 18(1), the criteria to which the courts have regard, it is not plain from those what the over-arching purpose is.

My second point builds on the point made by my hon. Friend the Member for Rugby and Kenilworth. He is entirely right that there is an imbalance here between the enforcement agency and the person who is the subject of the order. The agency does not have to establish any change of circumstance and, as my hon. Friend says, it can make the order more onerous even if there has been no change of circumstance. That is the effect of clause 18(8). However, the person who is the subject of the order has to demonstrate a change of circumstance. I do not like that imbalance because I see no reason in principle why there should be an imbalance. The consequence, as my hon. Friend rightly said, is that the enforcement agencies can simply go back and seek to improve on the condition of the order from its perspective, even if the omission was through their own fault in the first place. I do not like that one little bit.

Finally, if the change of circumstance justifies an application by the person who is the subject of the order, what are the criteria to which the court should address itself when determining whether or not to make the variation order? I am making absolutely no complaint as to the fact that amendment No. 114 was not selected; decisions have to be made. At least in that amendment, I tried to set out the criteria, which at the moment do not exist at all in the Bill.

I have two questions to put to the Minister. First, what is the primary purpose of clause 18? Secondly, what are the criteria to which a court should have regard when it considers an application to vary made by the subject of an order on the grounds of changing circumstances? The Committee requires answers to those questions.

Photo of John Bercow John Bercow Conservative, Buckingham

Order. It is probably just as well for the record to point out that amendment No. 114 was selected and it was, indeed, debated with amendment No. 104 to clause 10.

Photo of Vernon Coaker Vernon Coaker Parliamentary Under-Secretary (Home Office) (Crime Reduction)

I am glad that you mentioned amendment No. 104, Mr. Bercow, because I was wondering what happened to it.

The purpose of clause 18 is to ensure that an order can be varied so that it can be kept proportionate and reasonable by the applicant authority. I shall come back to the points made by the hon. Member for Rugby and Kenilworth and his right hon. and learned Friend, but the clause gives the option to vary an order to either the subject or the applicant authority. When either is significantly adversely affected, they may go back to the High Court and say, subject to conditions being met, that the order should be varied. The purpose is to bring proportionality and reasonableness to the Bill.

On the point made by the hon. Member for Rugby and Kenilworth, the applicant authority is given the freedom to go back to the Court without having to specify a change of circumstance to ensure that an order is not left in place if it becomes disproportionate or inappropriate. The subjects of orders are restricted from making similar applications to prevent them from overloading the courts with repeated and baseless representations about changes of circumstance. We have differentiated the authority that has applied for and been granted an order to ensure that such authorities have the power to change orders should it come to their attention that that is appropriate. The different stipulations for respondents are made because we do not want them continually to make erroneous or spurious applications or to overload the Court.

Photo of Jeremy Wright Jeremy Wright Opposition Whip (Commons)

The Minister said that the variation provisions were available to ensure that authorities could return to the court if a particular facet of an order became disproportionate or inappropriate. If that is the case, an order would become disproportionate or inappropriate as a result of a change of circumstances. I am not clear as to why a change of circumstances should not be a requirement for an authority that goes back to the Court to ask for a variation of an order.

Photo of Vernon Coaker Vernon Coaker Parliamentary Under-Secretary (Home Office) (Crime Reduction)

As I said, the applicant authority must be given an unfettered right to apply for the variation of an order to ensure that the order remains proportionate and appropriate. The distinction is—I am repeating myself—that a respondent may not go back to the High Court without specifying a change in circumstances. Without that requirement, people might continually go back to the Court with what we might term erroneous, insignificant or unimportant changes of circumstance.

Photo of Jeremy Wright Jeremy Wright Opposition Whip (Commons)

I shall put it to the Minister another way because what he is saying presents a difficulty. We shall not argue again about whether the orders are penalties, but there can be no disagreement that they  can have severe implications. Given the severity of the orders, is it not important that the person affected has certainty? They will never have that certainty if the relevant authority is permitted to go back to ask for a variation without there having been a change of circumstance, including a variation that would make the requirements of an order yet more onerous.

Photo of Vernon Coaker Vernon Coaker Parliamentary Under-Secretary (Home Office) (Crime Reduction)

Again, the Government have made the right distinction in the Bill, but the hon. Gentleman is arguing against it, albeit reasonably. At the end of the day, whether or not the court had to take account of a change of circumstances, if the applicant authority was making it more onerous, it would still have to demonstrate to the court what it intended to do and make its request to the court in a way that was reasonable and proportionate and to the satisfaction of the court. That is the safeguard. It is not necessary for the applicant authority to have the restriction that we have placed with respect to the respondent; in the end, the arbiter will still be the court. It will be the court that makes the judgment.

It is a different situation with respect to the respondent, because there is a different purpose. We are trying to ensure that we do not get a huge number of baseless applications, while retaining the right of a respondent to try to get an order varied if there is a significant change of circumstance which they believe the court should take into account.

Clause 18 provides an important power for the court to make variations to an order when appropriate. As I have said several times, the orders will not be used for anything other than to prevent involvement in serious crime, so when there has been a change in circumstances from when the order was made, which means that the terms of the order are no longer appropriate, an application can be made to the High Court under clause 18 to vary it.

I must resist the new clause as it is unnecessary and undesirable and would place an obligation on the relevant applicant authority that it could not possibly fulfil. To answer the point made by the right hon. and learned Member for Sleaford and North Hykeham, how is the applicant authority to know and hence inform the High Court, of every change in circumstance that occurs, which would potentially give the subject of the order the right to apply for variation or discharge?

The orders will most often be part of law enforcement efforts to manage serious career criminals for their lifetime. However, it does not mean that they will be under observation for 24 hours a day. It remains the case that the person most likely to know of a relevant change of circumstances, which would occasion the right to apply for a variation or discharge, is the subject of the order himself.

We need to think about the practicalities, and what the change in circumstances could possibly be. For example, what about the condition to use only one mobile phone to prevent the use of clean and dirty phones? The subject may take legitimate employment, which requires the use of a work mobile and makes the order unreasonable without variation. How would the applicant authority know of that? We have provided extensive rights for the subject of an order and third parties to apply for variation and discharge of the  order, which reflects the practical realities of how the orders will work and achieves the aim of the hon. Member for Taunton in tabling the new clause: that there is a means of ensuring that the terms of an order are maintained in a reasonable way.

In answer to the right hon. and learned Gentleman, the purpose of the clause is to try to ensure that when in place the orders are kept proportionate and reasonable, hence the desire to allow people to apply to vary them should there be a change of circumstances. Clause 18 provides an effective protection, which will mean that the terms of the order are appropriate.

For those reasons, I hope that the hon. Member for Taunton will seek to withdraw the new clause.

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

I want to respond to a couple of points about the new clause, and I understand the concerns that were expressed. My proposal does not exclude the defendant from applying for a variation, but it also puts a burden on the authority in that regard.

The orders have very severe penalties, which may restrict a person going to their own home, their working arrangements and their travel within the United Kingdom or abroad, and the authorities should know if the circumstances of a person who has had such restrictions imposed on their liberty change substantially. As the hon. Member for Vale of Clwyd said, we are not talking about people who have stolen a Mars bar, but about really serious criminals.

The Minister estimates that about 30 people would be subject to these control orders in any given year. They are serious criminals, as the hon. Member for Vale of Clwyd pointed out. Very small numbers of very serious criminals will have all their liberties restricted, short of being sent to prison. In those circumstances it is not unreasonable for the authorities to have an idea about whether their circumstances have changed. Furthermore, if it means that the police are more guarded about using these powers in all but the most extreme circumstances, that is no bad thing either. For those reasons, I am keen to push the new clause to a vote.

Clause 18 ordered to stand part of the Bill.

Photo of John Bercow John Bercow Conservative, Buckingham

The hon. Member for Taunton indicated that he would like to divide the Committee on the subject of new clause 2. That division will be taken when we reach the relevant point in our consideration of the Bill.