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Mr. McNulty: It is my understanding that discussions between the Prime Minister and the Leader of the Opposition are continuing and that matters such as those raised by the hon. Gentleman will be resolved, at least in outline, by the time we are in Committee. If that is not the case, I will write to the hon. Gentleman to make that clear. However, I am sure that discussions are ongoing, and that they address precisely the matters the hon. Gentleman mentions, such as the committees composition. It is right and proper that such issues are cleared up before the Committee stage, although how the hon. Gentleman approaches particular clauses in Committee is up to him. I am just trying to be helpful, as ever.
Nick Herbert: The Minister is, of course, being helpful, as ever, and I am grateful for his clarification. However, he will understand that we will reserve a decision until we have seen how the Privy Council review is conducted. It might be more appropriate for Lord Lloyds amendment to be considered on Report, when all Members can contribute.
Robert Neill: I entirely agree with my hon. Friend about the Privy Council committee and its composition, and perhaps through him I might invite the Minister to consider the following point. Does my hon. Friend accept that it would also strengthen the committee if we made sure that among its members were not only Privy Councillors but members of the senior judiciary, some of whom are Privy Councillors? They have experience in criminal matters, particularly the operation in practice of public interest immunity applications.
Nick Herbert: That is a very interesting suggestion. The crucial criteria should be that members of that Committee have experience and expertise, and that the Committee be balanced; it should not be capable of being controlled in any way by the Government. We await the Prime Ministers proposal.
Part 2 of the Bill deals the reform of the law relating to inchoate offences and follows Law Commission advice. In the main, it seems to us to be sensible, and we will examine proposals relating to incitement, for example, in Committee.
Part 3 begins with provisions on information sharing within the public sector and between the private and public sectors, with the purpose of preventing fraud. The Government claim that this is a narrow and targeted provision to prevent fraud. However, we are concerned that extensive powers are being taken that could allow for the first time widespread data sharing between the private and public sectors, which would overturn the basic data protection principle that personal information provided to a Government Department for one purpose should not, in general, be used for another. Instead, the principle appears now to be that information will normally be shared in the public sector, provided it is in the public interest. The Bill therefore clears the way for a large-scale data-matching exercise, even though a Home Office consultation paper published last year acknowledged that many public bodies feared that such operations could be seen as fishing expeditions. We believe that such procedures can be justified only on a crime-by-crime basis. As the former chief constable of the west midlands, Lord Dear, said in another place, there is
no problem with exchanging data on a target organisation or person,
To go on a data-sharing fishing expedition infringing the privacy of millions on the off-chance of catching a few, admittedly quite big, fish would be a step too far.[ Official Report, House of Lords, 7 February 2007; Vol. 689, c. 757.]
The Joint Committee on Human Rights has warned that, as drafted, the power of public authorities to share information with anti-fraud organisations could breach article 8 of the European convention on human rights, relating to the right to respect for private life. The Committee was also concerned about the absence of strong safeguards to ensure the proportionate use of data sharing. It proposed two limits on the powers, the first of which was to limit the width of the power, for example by specifying the information that could be disclosed and the categories of people to whom it could be disclosed, in place of the open-ended authorisation of disclosure to any person to whom disclosure happens to be permitted by the arrangements of a particular anti-fraud organisation. The Committees second proposed limit was to introduce additional safeguards in the Bill such as defining the threshold for reporting information on suspected fraud, limiting disclosure so that only information on those suspected of fraud would be shared.
In Committee, we will need to consider these proposals and the question of the appropriate limits, to examine the code of practice that the Government promised in another place but which they have now told us will be published when we are in Committee, and to examine the extent to which the code of practice will allay concerns and mean that limits need not be placed on the operation of these provisions.
Rob Marris: I thank the hon. Gentleman for his generosity in giving way. On his understandable concern about data fishingnot with a ph but with an f, to stay with the fishing theme and our earlier discussion involving salmon fishingwould that not be covered by schedule 7? It states:
A data matching exercise may not be used to identify patterns and trends in an individuals characteristics or behaviour which suggest nothing more than his potential to commit fraud in the future.
Nick Herbert: That was not the view of the Joint Committee. I am open-minded about whether the Government can reassure us that that provision will prevent fishing. Our concern is to ensure that fishing is not allowed. The provisions should be able to be used only to identify existing patterns of criminal activity. We will examine those detailed issues in Committee.
We understand the purpose of the provisions and their potential value, but the human rights considerations are serious and need to be addressed, not least because clause 66 suggests that not only relatively innocuous personal data, but sensitive data could be shared. That includes information on racial or ethnic origins, political opinions, religious beliefs, physical or mental health and sexual life. Indeed, the Bill specifically amends the data protection legislation to achieve that widened definition of data that may be shared. What is the justification for widening the definition to include sensitive personal data that do not immediately appear to relate to fraudulent activity? We
will seek reassurances from the Government on those points and, if necessary, amendments to the Bill. The Minister may be able to give us those reassurances when he winds up or, more likely, when we examine the detail of the Bill in Committee.
We are mindful of the Information Commissioners warning that we are sleepwalking into a surveillance society. The House has to be careful before passing wide ranging powers that could allow considerable intrusion into peoples private lives and the data that are held on them in breach of the principle of the data protection legislation. It is right that we should consider these proposals very carefully.
Chapter 2 of part 3 relates to the proceeds of crime and the abolition of the Assets Recovery Agency. As an example of the Governments legislative frenzy, the ARA was set up only in 2002 and has since been subject to various changes through legislation. Five years later, it is to be abolished, but that is perhaps not surprising given the National Audit Offices report in February, which pointed out that the ARA had recovered £23 million against costs of £65 million. The Minister will have to explain how simply dismantling the agency and reconstituting it within SOCA will make it more effective. The deckchairs are often moved around the deck of a sinking ship, but we want to know how the proposals will improve performance in assets recovery. We will also seek reassurances about the effect on Northern Ireland, where the agency has been more successful and is valued by the Police Service of Northern Ireland.
We have cause to be concerned about the placing of the ARA into SOCA. The former has been in operation for just over a year and we are concerned about its accountability. It has a budget of nearly £400 million, capital funding of £43 million and 4,500 full-time equivalent staff. However, the House has had no opportunity to debate the effectiveness of the agency since it was established or since it has reported. The ARA is meant to be accountable to Parliament.
I concede that it is too early to assess SOCAs effectiveness properly, and that we can take some positives from its first annual report, such as the volume of drugs that it has seized and the stronger international co-operation that it has fostered. Concerns remain, however: the agency has prosecuted fewer cases in the UK courts than its predecessor, and it has missed its targets for seizing criminal assets. Reportedly, it has suffered from poor morale, too much bureaucracy and staff problems. Questions have been asked about its cost-effectiveness too as, so far, it has achieved fewer convictions of organised criminals than its precursor, even though it has more than twice the budget.
Perhaps SOCA can answer all those questions, but it is very important that the House should have an opportunity to assess its effectiveness, especially before we accept a proposal to place within it the already not very successful ARA. We shall have to look at all those matters more closely as the Bill makes its way through the House.
Finally, clause 78part 3, chapter 4provides a new power to seal off an area and search it for firearms. The Minister said that this was another measure that had been imposed on the Government against their will, but it is pretty rich of the Government to say that ACPO did not ask for it. The Minister told us that
ACPO had said that the power was unnecessary, but what about the idea for a new stop-and-question power that he floated in the press? It was dropped unceremoniously a few weeks later, but did the Government take ACPOs view into account then? No, of course not. The Government are happy to pray in aid ACPOs opinion when it suits them, but they are equally happy to float a proposal and gain a good headline without even having the courtesy to talk to ACPO beforehand.
We need to examine the new power on its merits. The Minister described it as a reckless provision, but we will have the opportunity in Committee to hear his explanation of why he believes that the existing powers are sufficient, and to look at the issue in a rather more sober manner.
The Bill is typical of the Governments piecemeal approach to dealing with crime. The promised Criminal Justice Bill has not yet emerged, even though The Sunday Times promised us in January that it was to be the Prime Ministers final assault on Britains thug culture. We have had a series of Home Office Bills that have been badly thought through and incomplete, when what we need is more effective action by the agencies concerned, and more thought about the proposals brought before the House.
Despite the scrutiny of the Bill undertaken in another place, some serious questions remain, such as the implications for civil liberties of data sharing and the justification for, and the reach of, the serious crime prevention orders. In addition, we will need to debate the use of intercept evidence until we can be sure that the Privy Council committee is looking at the matter.
Those are all issues on which the Opposition want reassurance. We understand the purpose of the Bill and share its aims, so we shall not divide the House, but we reserve our position on crucial issues, especially those relating to civil liberties. The Bills progress will depend on what the Government have to say to us in Committee and on Report.
Mr. Jeremy Browne (Taunton) (LD): It was a pleasure to hear what may have been the farewell speech of the Minister for Security, Counter Terrorism and Police in his current capacity, with only 15 days to go until Gordon judgment dayG-day. Perhaps the hon. Gentleman will face ministerial oblivion, or perhaps he will be elevated to a greater rolewe await news of his fate with interest. He gave a typically robust performance this afternoon.
It is important to tackle serious crime; offences covered by the Bill include people trafficking and child sex crimes, which have a devastating impact on communities, families and, most important, the victims. I am sure the House would agree that, whether in the media or in ones community, it is infuriating to see people behaving as though they were immune from prosecution and above the lawthe so-called Mr. Bigs. I understand why the Government share the publics frustration about such people.
Over the past 10 years there has been an explosion in many categories of serious crime. Gun crime has gone up markedly since 1997. Knife crime has risen substantially over the past 10 years; yesterday, we were
given a terrible reminder of the devastating effects of people carrying knives. People trafficking has gone up substantially over the past decade. There is no doubt about the problem of serious crime; the question is whether the Bill addresses it as effectively as it could.
Before I get down to the nitty-gritty of the Bill, I shall make three broad observations about what may have informed the Governments thinking about it. First, it is fair to say that they are hopelessly addicted to what the Prime Minister famously described as eye-catching initiatives on crime. I shall briefly revisit the e-mail from TB of 29 April 2000, in which he said:
On crime, we need to highlight the tough measures...we are lacking a tough public message...we should think now of an initiative, eg locking up street muggers. Something tough, with immediate bite which sends a message through the system.
Maybe, the driving licence penalty for young offenders
but this should be done soon and I, personally, should be associated with it.
The reason why I quoted the e-mail so extensively is that the Bill exhibits the same traits. We are being invited to bring into our vocabulary new expressions such as the serious crime prevention orderthe SCPO, or perhaps there is another way of describing it. Perhaps Ministers did not think that was catchy enough so they came up with gangster ASBOs to capture with greater force the essence of the legislation.
It is worth recalling the words of Louise Casey, the Governments co-ordinator for respectI did not make up that title. Recently, she was reported as saying that she punched the air when she heard the word ASBO on EastEnders. That, in a way, sums up very well what the Government regard as the test of their eye-catching initiatives. Do they get mentioned on prime time TV? Do they enter the popular vocabulary? It is not necessarily to do with whether they are as effective as they might be in tackling crime and in passing the test of scrutiny in the House. No matter that in some parts of the country three quarters of ASBOs are now breached. As long as the co-ordinator for respect can punch the air because people watching EastEnders know what ASBOs are and regard the action taken by the Government as sufficiently tough, the initiatives will have achieved their objective. This is the era of soundbite and spinI hope it will last for precisely one more fortnight, but I suspect that it will notand the Bill has to be seen in that context.
My second observation has been touched on earlier and it is that the Government are hopelessly addicted not only to eye-catching initiatives but to legislation. It is worth stepping back and looking at what the Government have put through the House in this broad field since 1997. Labour has created more than 3,000 new criminal offences, passed 115,000 pages of legislation and introduced more than 50 Bills, including 24 criminal justice measures. In the 60 years between 1925 and 1985, Governments of different colours managed to get by with only six criminal justice Acts,
an average of one every decade. This Labour Government have been getting through them at the rate of more than two a year.
If I list the measures in this broad area that have been put before the House in just this Session, you will, Madam Deputy Speaker, get a sense of the legislative frenzy within which the Bill sits. The list contains the Fraud (Trials without a Jury) Bill, the Legal Services Bill, a criminal justice Bill, an asylum and immigration Bill, the Offender Management Bill, a counter-terrorism Bill, the Tribunals, Courts and Enforcement Bill and this, the Serious Crime Bill. It is no wonder that Ministers have little time to run their Departments effectively. They are so busy trying to make a splash with legislation in the House.
My third observation is how hopelessly cavalier the Government are with the foundations of our criminal justice system. What am I talking about? I refer to the very essence of our criminal justice system and the features that, as children growing up in the United Kingdom, one learned to value and regard as important. Those features include trial by jury, the presumption of innocence and the right to a fair trial before an independent court. These are not niceties and added extras, but fundamental protections for the individual citizen from the excessive power of the state and they have been developed over many centuries. We have to be extremely cautious about regarding them lightly and disregarding them quickly in the House.
I shall concentrate my specific comments primarily on part 1 and to a lesser extent on part 3. The big issue that we need to consider today and in the Bills remaining stages is that part 1 seeks to restrict the liberties of people who may never have been convicted of any criminal offence. The whole notion of a person being innocent until proven guiltyas I have said, I was always given to understand that it is the fundamental right of every British citizen to start with that assumption made about their guilt or otherwisehas been stood on its head. Instead, the High Court merely has to be satisfied or have reasonable grounds to issue a serious crime prevention order. That is a considerably lower threshold than innocent until proven guilty and the other safeguards that I have touched upon. That is why the Liberal Democrats tabled an amendment in the House of Lords that would add after the word satisfied the phrase beyond reasonable doubt. That was rejected in the other place, but we intend to revisit the matter in Committee if the Bill is given a Second Reading.
The Minister in the other place, Baroness Scotland, admitted that what I have described is indeed the case. Let me take the House briefly through the relevant passage of her speech. In exchanges between Conservative Front-Bench Members and the Minister for Security, Counter Terrorism and Police, we were told that the safeguards were rigorous and that there was not as much need for concern as I have claimed. However, Baroness Scotland said:
These are civil orders, so this involvement will have to be proved to a civil standard. But I know that many of your Lordships will be only too awareso I hope that noble Lords will forgive me if I emphasise itthat where serious assertions are made, the civil standard can be virtually the same on certain issues as the criminal standard.
Recent case law has stated clearly that in proceedings like these 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.]
That statement is full of caveats: virtually the same, on certain issues, the likely standard, and very close. That falls a long way short of the reassurance that the Minister for Security, Counter Terrorism and Police sought to provide this afternoon.
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