Schedule 2

Serious Crime Bill [Lords] – in a Public Bill Committee at 5:30 pm on 3 July 2007.

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Functions of applicant authorities under Part 1

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

I beg to move amendment No. 133, in schedule 2, page 54, line 28, leave out paragraph 2.

Photo of Joe Benton Joe Benton Labour, Bootle

With this it will be convenient to discuss the following amendments: No. 134, in schedule 2, page 55, line 26, leave out paragraph 7.

No. 135, in schedule 2, page 56, line 17, leave out paragraph 13.

No. 136, in schedule 2, page 57, line 1, leave out paragraph 17.

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

Amendment No. 133 is not a minor amendment; it is, I hope, an important amendment. We have been over the nature of the orders many times—how wide ranging and draconian they are, the limited protection given to the citizen, the fact that they are renewable, and the rest of it. Some members of the Committee might have taken comfort from the fact that under clause 9 an application can be made by only a limited number of individuals—the Director of Public Prosecutions, the Director of Revenue and Customs Prosecutions, the director of the Serious Fraud Office and, in the case of Northern Ireland, the Director of Public Prosecutions for Northern Ireland. On the face of it, therefore, the central and important distinctions are being made at a very high level of administration.

That is the comfort that some members of the Committee might have taken from clause 9. However, I wonder whether they should have drawn such comfort, because in schedule 2, under paragraphs 2(1) and 2(2), paragraphs 7(1) and 7(2) and paragraph 17, the powers can in fact be delegated downwards to a relatively low level. So far as the powers of the Director of Public Prosecutions are concerned, paragraph 2(2) says: “References...to the Director” can be deemed to be

“references to...any Crown Prosecutor.”

Paragraph 7(2) says: “References...to the Director”—that is, the Director of Revenue and Customs Prosecutions—may be deemed to be

“references to...any Revenue and Customs Prosecutor.”

Similarly, paragraph 17, which refers to Northern Ireland, says: “References...to the Director” will be

“references to...any Public Prosecutor.”

The important point, which I have made already, is this. If we give powers to an official, we can be quite sure that those powers will from time to time be abused. When the powers are set a level at which the powers in question have been set, it is important that they should exercised at very high administrative level. I am very far from happy—indeed, I am extremely unhappy—that the powers to make applications that could lead to such draconian consequences should be entrusted to officials of fairly modest standing. That is not right.

That concern is reinforced by the fact that the Minister has told us on several occasions that we should expect only a limited number of applications to be made—he said that the regulatory assessment had suggested 30 orders a year. We are dealing with four jurisdictions—Northern Ireland, the Revenue, the DPP and the Serious Fraud Office. We are talking about only four, five or 10 applications per director, so why on earth can not it be confined to the director himself or herself, rather than being entrusted to a relatively junior official.

I hope that the Committee will reflect on those points and decide that applications of this kind, which are serious in their potential consequences, should be confined to senior officials, together with all the other consequential decisions that are referred to in, for example, paragraph 1 of schedule 2.

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

Either the Director of Public Prosecutions, the Director of Revenue and Customs Prosecutions or the director of the Serious Fraud Office must make the specific decision to delegate. It will not happen automatically, as the right hon. and learned Gentleman implied. It will be a positive decision.

Schedule 2 sets out the functions of the applicant authorities in relation to part 1 of the Bill. The amendments all relate to the powers of the directors of the four applicant authorities to delegate the exercise of their functions in relation to serious crime prevention orders to members of their respective organisations. Those powers have been included because we want the Director of Public Prosecutions, the Director of Revenue and Customs Prosecutions and the director of the Serious Fraud Office to be required to make a decision to delegate to a member of their staff rather than the delegation happening automatically.

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

Clause 9 states:

“A serious crime prevention order may be made only on an application”,

but the effect of paragraphs 2(1) and (2) of schedule 2 is that the conduct of applications can be delegatedto a Crown Prosecutor. In other words, the Crown Prosecutor, in contrast with the director, has all the consequential decisions to make, as he has the conduct of the application.

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

My point is that it would not be automatically delegated—

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

But once delegated, those prosecutors would, to all intents and purposes, be the applicant authority. I accept that point. However, as well as being under the control of their own directors, the right hon. and learned Gentleman will have noted that paragraph 3 of schedule 2 states:

“The functions of the Director under this Part are exercisable under the superintendence of the Attorney General.”

It is not only that the director of the specific prosecution agency will ensure that things are done properly; the Attorney-General also has a responsibility.

If the amendments were made, the directors would need to fall back on their existing powers of delegation. In some cases a director might be left without any power of delegation and in others delegation would happen automatically. It would be impractical to ask the directors of each of the three organisations to carry out those functions personally, even for the relatively small number of orders that we anticipate. Instead, those functions will be carried out by specifically and specially trained members of their respective organisations, all under the superintendence of the Attorney-General, as also specified in the schedule.

Photo of Crispin Blunt Crispin Blunt Opposition Whip (Commons)

We had a discussion about the application of the orders to prisoners who come out of prison having been sentenced for a serious crime. Instead of there being 30 cases a year as under the impact assessment, there could be 30,000. I imagine that that is the sort of number of people leaving prison after being convicted of serious crimes every year, so it would become an automatic part of the process when the powers are delegated. Can the Minister say anything to comfort me that the powers will be delegated only in a way that will not lead to an automatic post-imprisonment process, and that a suitable order is applied to everyone who leaves prison having been convicted of a serious crime?

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

Obviously, only an appropriate order would be allowed by the court. That would be part of the process. We came to the number 30 as a result of an assessment of the number of orders that we thought would be made in any one year. That was in the regulatory impact assessment, and it is our best assessment of the number of orders. We do not in any way expect there to be 30,000; the orders will deal with very serious criminals and very serious crime.

The hon. Gentleman almost seemed to suggest that a director might go willy-nilly for a serious crime prevention order. I hope that he will find the comfort that he seeks in the fact that that simply could not happen. A director doing that would be not only subject to the normal processes within their own agency, but under the superintendence of the Attorney-General—who would be the governor, if you like, of the prosecuting agencies. Before the issue got to court, the Attorney-General would see that going willy-nilly for such an order was not appropriate and reasonable. If someone seeking an inappropriate serious crime prevention order got it to court, the court would simply not allow it to be made.

Photo of Dan Rogerson Dan Rogerson Shadow Minister (Culture, Media and Sport)

The Minister has painted a picture of the powers being included in the Bill for operational reasons—in other words, they  would give various organisations the capacity to function and the director would not have to have direct responsibility, although they would ultimately take the decision.

However, I envisage a case in which the decision that such an order might be desirable to the agency in question came from below—came to the director, who then signed it back down to someone below. In other words, we are increasing the capacity for the number of orders to multiply, much as the hon. Member for Reigate suggested.

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

To clarify the position for the hon. Member for Reigate, I should say that we estimated that there would be approximately 30 cases. That estimate of need came from the various branches of law enforcement. We believe that it is appropriate for the director of the prosecuting agency to be able to delegate to a specific, specially trained member of staff. However, such a staff member will not simply be able to decide to apply for the order, just because the issue has been delegated down. The decision would have to be proportionate and reasonable—otherwise, the court would simply not allow it.

The position of the Director of Public Prosecutions for Northern Ireland is slightly different. The Bill does not give him a power of delegation; his powers to delegate under section 36(1) of the Justice (Northern Ireland) Act 2002 will be relied on. Paragraph 17 to schedule 2 of the Bill makes the position clear. I hope that, for the reasons that I have outlined, the hon. Gentleman will withdraw his amendment.

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

This is the first time I have spoken this afternoon, so I welcome you to the Chair, Mr. Benton. If the right hon. and learned Member for Sleaford and North Hykeham is minded to press the amendment to a Division, we shall support him for the following reasons. There is confusion in the Government about how many people will be affected annually by the orders. The figure 30 keeps being presented. One could say that a point of principle is involved, that the numbers are neither here nor there and that one is either in favour of the principle or not.

However, the public will perceive that the number of people affected each year is significant. The Minister seeks to reassure us that the orders are reserved for the tiny number of real Mr. Bigs, the real problem people; 30 is the figure that he keeps citing. However, when Government Back Benchers make interventions, they always say, “This Bill will go down extremely well in my constituency because of all the people committing antisocial acts on various housing estates.” They say how much they will appreciate the Bill. However, there are 646 Members of Parliament, I think. On the basis of 30 a year, a person will be affected in each constituency only about every two decades. The effect on those hon. Members’ constituencies will not be as profound as they seem to think.

Chris Ruane (Vale of Clwyd) (Lab) rose—

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

If an 18-year-old is causing trouble, in, for example, the constituency of the hon. Gentleman to whom I will give way in a moment, if the Government  go through 30 cases a year, that 18-year-old will be knocking on 40 by the time a serious crime prevention order is put in place.

Photo of Chris Ruane Chris Ruane Labour, Vale of Clwyd 5:45, 3 July 2007

Is the hon. Gentleman aware that the 30 super-criminals of whom we are talking spread their power, or tentacles, over many constituencies and across whole cities, communities and regions? It isnot just one bad person, or super-gangster per constituency. The reach of such people is far and wide, and often they reach into our communities—the poorer communities—and Labour constituencies, which is why Labour Members are concerned.

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

I am grateful to the hon. Gentleman for making that point, but if we are talking about such a small number of people, he will have no difficulty in supporting the amendments. There is no need to delegate the power to make a decision that is as infrequent as this one will be—roughly 30 people a year. The concern is that if we do not pass the amendments, there will be a machine somewhere within Government signing the orders through on a regular basis.

The hon. Member for Reigate made a point about people who are released from prison having orders imposed upon them as a matter of routine. We are told that 30,000 is an excessive number and it will not be of that order, but that 30 is a reasonable estimate. However, this is the same Government who made an estimate about the number of Polish people coming to work in the United Kingdom.

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

I will ignore the last remark. I say to the hon. Gentleman that this is an extremely important point, about which I do not want there to be any misconception. The Government do not sign through serious crime prevention orders; it is the courts that do so. Whatever else we have said in Committee and whatever disagreements there have been, the courts will make the decision about whether a serious crime prevention order should be made or not.

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

I am grateful for that intervention. Of course the courts will make the decision, but the application is made by an agency of the Government and this is a Government Bill.

In conclusion, if Members think that 30 is a realistic assessment of the numbers of people who will be affected annually, it is perfectly reasonable that the decision is taken at a higher level and that these amendments are supported on a cross-party basis. If they are not, one must make the reasonable assumption that the 30 figure will not apply in practice, if and when the Bill becomes law.

Photo of James Brokenshire James Brokenshire Shadow Minister (Home Affairs)

This interesting debate has highlighted concern about the application of the orders and the way in which they will be sought and operated. Conservative Members accept that there must be an element of delegation by the authorities to makethe system work appropriately, but that does not undermine the importance of the concern that if the orders are as serious as the Minister has suggested and  if they are only intended to be used in a limited set of circumstances, we must ensure that there are clear lines of communication and that clear steps would be taken to ensure that control was exercised and decisions were made at an appropriate level. Doing so would denote the seriousness of the orders that we are talking about.

Photo of Geoffrey Cox Geoffrey Cox Conservative, Torridge and West Devon

Does my hon. Friend accept that there is nothing in the Bill that mentions super-criminals, there is nothing in the Bill that says there will be only 30 applications and there is nothing in the Bill that would necessarily or logically imply that the orders will be applicable to only 30 people? [Interruption.] The Minister smiles, but I have seen this happen before. Legislation is passed, teams are set up in all the prosecuting departments and it becomes self-generating. It will be—

Photo of Joe Benton Joe Benton Labour, Bootle

Order. I remind the Committee that the Minister has already replied to the debate. The proper sequence should have been for the hon. Member who spoke before to speak before that, but the timing was not quite right. I do not want to repeat things, but the Minister has already replied. It would be helpful if we could move along and the mover of the amendment could indicate whether he will withdraw it.

Photo of James Brokenshire James Brokenshire Shadow Minister (Home Affairs)

Thank you, Mr. Benton. I shall take that advice. My parting comment, in the light of the intervention by my hon. and learned Friend the Member for Torridge and West Devon, is that there are clear reservations about the measures’ extent and application. I urge the Minister to consider again whether some greater comfort could be provided to make it clear that they are intended to operate only in limited circumstances and address within the Bill the concerns expressed about wide discretion.

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

Having listened to the debate, it seems to me that there are merits on both sides. My hon. Friend the Member for Hornchurch and indeed the Minister have made the point that it is occasionally necessary to delegate. I understand that. A number of applications will be made to the court in the course of any proceedings that do not have to be made by the director in person and can probably be sensibly delegated down. On the other hand, given the relatively limited number of applications forecast by the Minister, a number of policy decisions relating to any one application should properly be made by the director.

The problem at the moment is that the director—I am referring simply to the Director of Public Prosecutions, although this is relevant to all the other enforcement agencies too—has complete discretion as to how much delegation should occur. I should be much happier if it were made plain in the Bill that only consequential actions should be delegated down, and that primary actions should be retained and confined to the directors in question.

It is not a total precedent, but the Minister will remember telephone tapping warrants. In my day, they were made in the Home Office by the Minister and not by officials. That may have changed, but it has always been recognised that some classes of order should be made exclusively at a very high level. I would like to  think that he will revisit the matter to see whether we can construct a clause that reflects that.

I have one other point. The Minister draws comfort from the fact that the director’s functions are exercisable under the superintendence of the Attorney-General. I have never served as a Law Officer, but I was a Minister for a long time, and I can tell him that no Minister—for this purpose, I regard the Attorney-General as one—will exercise close superintendence over how the powers are used. It is possible that a discussion might take place at one stage between the director and the Attorney-General about the director’s general approach, but the idea that the Attorney-General will supervise every substantial order-making power is simply not right.

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

We have disagreed on a number of things. The right hon. and learned Gentleman will have to press his amendment if he does not accept this.I shall consider his point, but—to be completely honest—without a commitment that anything will happen on Report. If he wishes to withdraw his amendment on that basis, that is fine. I cannot give him a firm commitment, but I will consider it.

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

I accept that the Minister will considerit again. I recognise that he is not giving any commitments about the outcome of his considerations, but on that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 2 agreed to.