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The court must then have reasonable grounds to believe that the order would protect the public by preventing or restricting an individual’s involvement in serious crime in this country. Again, it is important to note that that can be any serious crime, not only offences of the same kind as the court believes the individual has already been involved in. The Minister’s response to that criticism is that serious criminals are nothing if not flexible or diverse, and a drug smuggler may switch to people-smuggling. Criminal ingenuity is nothing new, but in this Bill we have committed ourselves for the first time to the proposition that if you have committed one crime you should be deemed highly likely to commit other sorts of crime, although they are not even of the same kind.
A serious crime may be one of those offences listed in Schedule 1, many of which are obviously serious and some of which could be serious or could be trivial. As other noble Lords have said, others seem almost inevitably trivial, although someone such as the noble Lord, Lord Kimball, would think that fishing with a prohibited implement was probably a much more serious crime than murder, treason or rape. However, a serious crime may also be—and this, one would have thought, will raise the eyebrows of most people used to the criminal law—any other offence that the court considers to be sufficiently serious to be treated as if it were on the list. Therefore, the Government accept that the court will have very wide discretion in deciding what fulfils the test, and the person in question may have no
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When the court has decided that the two requirements have been fulfilled, it can make an order containing any prohibition, restriction, requirement or other term as it thinks appropriate for protecting the public by restricting that person's involvement in any type of serious crime. As has been said, the Bill gives examples of the kind of provision that can be made but does not impose any limit. Extremely wide-ranging examples have been read out, but that does not mean that they cannot range even wider.
I come to perhaps the most amazing provision of all: you are not to do anything that a police officer tells you that you are not to do. A police officer can say, “You are not to go out of the house the whole weekend and you are not to allow anyone to visit you”. It can be said that that provision might be set aside. None the less, it will be there unless and until somebody succeeds in having it set aside.
It seemed to everyone on the committee that these provisions are a major departure from the basic principle of English common law, whereby the criminal law is the only mechanism to punish criminal activity and the civil law can grant an injunction only on a claim by an individual who has already been injuriously affected by the defendant’s wrong, and then only to prevent a repetition of that wrong.
It is true that there has already been some erosion of that general principle in football banning orders and in ASBOs, but in our view the Bill goes a long way further and wider than anything which has gone before. It is not for the committee to decide whether the policy of the Bill is necessary, justifiable or desirable. We merely draw the House’s attention to the fact that it seems to constitute a major change to the principles of our constitution, and a change that, we suggest, the House may wish to consider very carefully.
6.11 pm
Lord Marlesford: My Lords, the speeches that we have heard this afternoon illustrate a justification for the existence of the House of Lords in its present form. I shudder to think what would happen to this sort of legislation if this Chamber did not exist, given the expertise and depth of knowledge that we have heard today.
I ask myself how it is that the Home Office produces this endless procession of ill conceived and ill thought-out law and order Bills. I conclude that it is because it lacks three things: judgment, practicality and focus. One of the great problems we in the UK have is persuading the European Union to underline proportionality in its proposals. That is also a real problem for the Home Office.
Like most noble Lords who have spoken, I am astonished by the Bill’s schedule of offences. I believe that trout tickling has been mentioned. The Bill refers to offences under the Wildlife and Countryside Act and to offences concerning the treatment of waste under the Environmental Protection Act. If the Home Office regards those as serious crimes, quite apart
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I share the anxieties about Part 1. For me, it is too Stalinist. I refer to the concept of arranging for courts to classify unconvicted persons almost as if they were what were referred to in Soviet days as “enemies of the people”. That is a step away from the light of democracy towards the shadow of totalitarianism and it is quite unacceptable. I hope that it will be removed from the Bill, as other bad things have been from other Bills.
The Government are not doing things that should be done in the Bill. For example, we can make it a great deal more risky for criminals to carry guns in the streets. I shall, therefore, be reintroducing an amendment that I tabled previously to give the police powers to search for firearms. That would be in Part 3, which is entitled:
I shall propose a new clause after Clause 75. I very much hope that the Government will recognise that what has happened on our streets since I made the proposal in October has reinforced the case. Those parliamentary colleagues with whom I have discussed this agree with that.
There are other opportunities to improve Part 3. There are proposals to extend data sharing that are not acceptable in their present form. We really need to make sure that we collect the data that we need—that the state collects the data that it needs. As the Minister knows, I have tabled a number of Written Questions, and I thank the Home Office for replying to them much more rapidly than it has in the past; that is a bouquet, at least.
As the Minister may know, Sub-Committee F of the European Union Select Committee, of which I am a member, has been studying the implications of the second generation of the Schengen information system. This is an EU-wide system for the collection and exchange of information relating to immigration, policing and criminal law for the purposes of law enforcement and immigration control. The UK has not, rightly in my view, signed up to the Schengen agreement. We continue to control our own borders. That means that there are limits to the amount of Schengen information that we can share. In my view, any modern state needs to know with certainty who its citizens are and who is residing in the state. The problem is that our present manner of identifying citizens and residents of the UK has been found wanting.
I will give some examples. First, believe it or not, anyone in the UK may lawfully change their name without any notification to the authorities that may need to deal with those persons. The Registrar-General for England and Wales set this out extremely
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“There is no government agency that is responsible for registering the change of name of individuals. There is no requirement to register a change of name for it to become lawful. An individual may choose to make a statutory declaration or deed poll in order to provide evidence of their change of name. There is no central record of all name changes. Individuals are responsible for notifying relevant agencies that they have changed their names”.—[Official Report, 29/1/07; col. WA 15.]
This reveals a system that is quite simply anarchic. It would not inspire any respect from any Schengen member state. Note that, although individuals are responsible for notifying agencies of their change of name, they are under no obligation to do so. The present system is one that enables and, indeed, incites those of evil intention to conceal their identities with full legal cover. I hope that perhaps we might introduce an amendment to correct that situation.
Passports are supposed to enable the Government to control those who enter and leave the country. First, there is no official passport inspection by the immigration authorities of those leaving the country—only the airlines look at your passport, and that is not the same thing, nor is it an acceptable substitute. Secondly, there is only now starting to be an electronic record made of those arriving in the country. This facility is not, I understand, in full operation at all points of entry. If I am wrong about that, I hope that the Minister will correct me.
Next, let us examine the security of a passport. On 31 January, the noble Lord, Lord Bassam, kindly informed me in a Written Answer that, during 2006, the Identity and Passport Service processed 291,000 reports of lost or stolen passports. In the same year, it issued 298,000 replacement passports. How many of those were multiple replacements for the same person? How effective is the cancellation of a lost or stolen passport? How quickly does this information reach our frontiers? Of what use is it to prevent those using a stolen passport from leaving the country?
I was also informed that no attempt is made to cancel the passport of someone who is serving a custodial sentence until he or she has been released. Nor is any attempt made to pass to the security authorities the passport details of British citizens who have been detained overseas, even though the British consular services, when they have dealings with such people, collect the data. That information is just not used.
This ill conceived and ill thought-out Bill offers the opportunity for us to put into it things that need doing and I certainly hope that we will remove the things that should not be in it.
6.20 pm
Lord Burnett: My Lords, I declare an interest: I am a lawyer, but I have never practised in criminal law and I hope that that will not become too apparent during our discussions on the Bill.
There are a number of extremely serious flaws in the Bill, to which my noble friend Lord Thomas of Gresford and other noble Lords referred, and I hope to be able to advert to some of those during the later
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I should like to say a few words about the targets of the Bill: the tracing and sequestration of assets, intelligence, the international exchange of information and tax fraud. The Minister has said that many of the targets of this legislation are “not stupid”. That is an understatement. I note that individuals, companies, limited liability partners and presumably trustees are covered by the Bill, but I think that everyone in the House will agree that much serious crime has an international element and that enforcement will, in many instances, depend on the co-operation of other jurisdictions.
We rely on other jurisdictions for exchange of information and intelligence. In Committee, we shall have the opportunity to gauge whether sufficiently effective systems of international co-operation are already in place and whether we are using them adequately, properly and conscientiously. We need information and intelligence from overseas jurisdictions but we also need to be able to recover proceeds of crime from banks and other institutions and even from the most—shall I say?—protective and opaque regimes.
There are additional powers to assist the quest of Her Majesty’s Revenue and Customs to bring tax fraudsters to justice. I appreciate, and wholeheartedly agree with the Minister, that these powers are not appropriate in respect of HMRC’s day-to-day compliance work, but I remind her that in some countries—for example, in Switzerland, I believe—things such as tax fraud are definitely not criminal but civil matters.
The successful detection and prosecution of tax fraud often leads to the discovery and detection of other serious offences. Some years ago, the Government embarked on a series of international negotiations, even involving tax-haven countries, for more open exchange of information. I debated in the other place the first of such orders some two or so years ago. The order gave us very limited rights to obtain very limited information. In Committee, we shall have the opportunity to gauge the progress that the Government are making in tackling serious international crime and their effectiveness in pursuing such crime, given the powers that they already have.
As I said, there are some major and fundamental objections to parts of the Bill, but we shall wish to probe the effectiveness of existing powers, as well as the appropriateness and proportionality of the powers that the Government are seeking to take.
6.25 pm
Lord Dear: My Lords, I share many of the reservations expressed in your Lordships’ House this evening, but the Minister’s opening words, that this is a significant Bill, should be emphasised. The title itself, simple though it is, should focus our attention on a nationally serious problem.
I am generally comfortable with Part 2 of the Bill, certainly in so far as it covers the encouragement of, or assistance in, crime; inchoate liability, as many of us in
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I look at this issue as two sides of the same coin: the obverse and the reverse. On the obverse, it is one of those rare and strange coincidences that almost exactly 10 years ago, when I was leaving my post as Her Majesty’s Chief Inspector of Constabulary, I saw the launch of an operation against a then target criminal, Terry Adams. This morning, the newspapers are full of his conviction. Unsurprisingly, the Daily Mail had perhaps the biggest headline:
It said that, after a £50 million, 10-year investigation, the head of Britain’s most feared crime family finally—“finally” was in capital letters—faces jail.
During those 10 years, it is conservatively estimated that Adams racked up a £200 million criminal empire. Reading the newspapers, you would believe that he is the only major criminal—one name that shone out in that pantheon of criminality above all others. To balance that, one could talk about Kenneth Noye, Curtis Warren, the Charrington brothers or many others. All of them, in my ex-professional experience, have a series of typical attributes. They were and are all ruthless. They are violent to the point of using torture, extortion and murder as an easy recourse. They are avaricious, cunning and corrupting, and, above all, they are wealthy and they swagger. They swagger because they believe, often rightly, that they are impregnable to the deprecations of the law. They put in mechanisms and layers around and beneath them to prevent the legal process from getting to them. They cause mega-billions of damage to our economy, and a great deal of suffering.
I will come to the other side of the coin in a moment, but it is not just that these criminals operate in the stratosphere of crime. One would see two results at street level. First, it is their drugs, large numbers of pirate DVDs, prostitutes, imported firearms, illegal immigrants and protection rackets that affect all of us at street level. That is the scope of the problem. Secondly, small criminals are imitative. Little criminals, naturally enough, aspire to be bigger criminals. They look up at those with bigger cars, better suits and all the trappings of criminal wealth, and they aspire to move up. The higher the level at which we allow the top criminal to operate, the greater the ladder of criminal opportunity.
The Serious Organised Crime Agency was created to deal with core criminals—a very small number of very large fish. It is a multi-agency organisation, and it is not likely to be involved in ordinary, run-of-the-mill investigations. It will not deal with somebody who comes into its office and asks for a crime to
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I shall keep my remarks short because the ground has already been covered. Part 1 bothers me as it bothers many other noble Lords. ASBOs have been mentioned; “too many” and “too loose” are epithets that could be attached to them, as they could be to serious crime prevention orders. I have no quarrel with the title—serious crime prevention is what this House and the whole of society should be involved in—but they come suspiciously close to control orders. I believe that the degree of legal uncertainty in the Bill is unacceptable. There is a need for greater specificity within Part 1. There are too few limits on the type and scope of its terms.
We have already explored Part 3. I am not altogether sure what data mining means, but it seems to me that we would have no problem with exchanging data on a target organisation or person. It might have been a good idea to have had that resource to target the criminal enterprise of Adams, the man I mentioned who filled the newspapers this morning. Joint police operations with HM Revenue and Customs sharing information in that way are presumably a good idea.
However, we should not go on fishing expeditions—with my tongue firmly in my cheek, I say that I, too, was surprised to see salmon and trout fishing in Schedule 1 to the Act. As I am a man who spends much of his spare time standing up to his waist in Scottish rivers looking for fish that do not exist, noble Lords might expect to find me in Committee arguing very strongly to keep that provision in the Bill—but, seriously, I share the doubts about some of the examples in Schedule 1. 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. Not so very long ago, the Information Commissioner said that as a society we are,
We are talking about means and ends. So far as the end is concerned—combating serious organised crime—let none of us lose sight of the fact that it is a real and dangerous problem. The end set out in the Bill has to be sensible and supportable. It is critical to the social stability and well-being of this nation. We have to give support to SOCA, as it is currently set up. At the same time, we must address very serious questions, in Committee and after, on the means that we use to achieve those ends. I share many of the doubts about how the Bill is drafted so far as means are concerned. I look forward to a full exposure and critical examination in Committee.
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6.35 pm
Lord Dholakia: My Lords, I endorse the sentiments expressed by my noble friend Lord Goodhart. Perhaps I may say how delighted and pleased we are to see the noble Baroness, Lady Scotland, in her usual place. I thank her for introducing the Bill. Those are about all the good things that I will say for now, but there are many issues that we will need to tease out in Committee.
Two days ago I had the pleasure of a very informal chat with the noble Lord, Lord Peston, in the Library. The conversation turned to the Serious Crime Bill. We both agreed that there was a basic flaw in the way in which the Bill is framed. Nowhere is there a clear definition of “serious crime”. We have a category of crimes that are identified as serious. I will name a few: drug, people and arms trafficking; prostitution and child sex; money laundering, fraud, corruption and bribery; counterfeiting; blackmail; intellectual property offences; and environmental offences.
The first question for the Minister is: if there is no definition of serious crime, where is the threshold at which a crime becomes a serious crime? When is a serious crime downgraded to a not-so-serious crime? Schedule 1 to the Bill lists serious offences. That is helpful, but what will Joe Public make of that schedule? A number of noble Lords have talked about the issue of seriousness in relation to paragraph 11(1), which refers to,
If I were an angler, that would be a very serious matter, but how do you convince people in our inner-city areas that robbery with violence or gun crimes are less serious than a fishing expedition?
No one would dispute that serious and organised crime must be tackled. That is a common understanding among us. Such crime blights the lives of law-abiding citizens, and prevention and detection must be at the heart of any legislation. Equally, we must ensure that no criminals benefit from it. For those reasons, we want the Serious and Organised Crime Agency to succeed.
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