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6.30 pm
Lord Bassam of Brighton: I congratulate the noble Baroness on moving the amendment as she did, because it neatly juxtaposes fishing and armed robbery in a very clever way and invites the sort of debate that we have had. I have been entertained listening to the debate for the past 20 minutes. It has had more merit than I expected.
I will reverse how I deal with the issues raised because of how the amendments worked out in debate. I shall deal with Amendments Nos. 49 and 51 first and then come back to the fishing amendments. I have listened with great care to what has been said about the armed robbery amendment, if you like. There is considerable merit in it. It must be right that we look at that again. I accept the arguments about it. We are consulting stakeholders to ensure that the schedule reflects those offences for which it would be appropriate in all circumstances to place an order. The noble Lord, Lord Dear, made the point about including firearms; again, we will take that point on board.
In a sense, our discussion has underlined the point I made on the earlier amendment: just as we as a House can disagree over what should be included in a list of matters to be considered serious, we need that flexibility because, at different times, seriousness will come into play and different and new offences will raise their heads. It is right we have a schedule, an order-making process, and that we keep under careful review what should be in the schedule.
Lord Waddington: The noble Lord makes an interesting point, but is there a theme behind the schedule? On the face of it, it is a ragbag of various types of unrelated offences. What is the theme that has resulted in this extraordinary range of offences, so very different in character? I just do not get it at the moment. I am sure that there must be a theme, but what is it?
Lord Bassam of Brighton: I would argue that it is the theme of seriousness. It is right that that is the theme.
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Lord Waddington: But murder and armed robbery are not included. There are far more very serious crimes not in than are in. So what is the theme?
Lord Bassam of Brighton: Murder is a separate category: if you are convicted of murder, it is a very serious offence, you are taken out of the frame, you are unlikely to be in a position where you can be reconvicted. That is not the same with other serious offences such as, for instance, armed robbery and robberies conducted using a dangerous weapon.
I take issue—in a sense, the House took issue with itself because there was considerable debate on the Benches opposite—on the argument about environmental offences. I agree with the noble Baroness, Lady Carnegy of Lour, and the noble Earl, Lord Mar and Kellie—although he has not spoken in this debate, we have been told what his views are. I agree with the noble Lord, Lord Dear, that environmental offences are very serious. That is precisely why they are in the schedule. I have thought very carefully about this issue. People are now coming to the view that environmental offences are increasingly serious. Only this week, we brought forward a climate control Bill. That underlines the point.
Baroness Anelay of St Johns: I hope that I made it clear that I am trying to find out not just the level of seriousness expected but why the Government think that those offences—in this case, environmental offences—cannot be dealt with properly by existing criminal offences. Why are they being left to be dealt with according to the civil burden of proof used in serious crime prevention orders? I hope that he will address that underlying question.
Lord Bassam of Brighton: I will come to that point, but I want to finish the first issue, because it is important. The debate in the House underlined the increasing seriousness with which our society views environmental crimes. That is why the list is there. The noble Lord, Lord Dear, gave a very good example on salmon fishing of why such an offence is serious; the noble Baroness, Lady Carnegy of Lour, did exactly the same. They are absolutely right: vast sums of money can be made by committing such offences.
Many years ago, and it seemed strange at the time, my local authority had a rare orchid collection. We spent a lot of money protecting those rare orchids, and I was told that they had considerable value if there was a market for them. The idea that rare species can be stolen and sold is anathema to me and, probably, to many people in this country. That is why we consider environmental offences, whether they relate to flora, fauna, fishing or whatever, as serious.
The noble Baroness partly answered her own point because the orders relate to the prevention of crime. That is why they are set out as they are and why the order-making power is there. Of course we expect that the offences will be dealt with in the normal way, but this is a preventive method. The applicant authority in these cases must prove to the standard set out in McCann, which is likely to be very close to beyond
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On the question posed by the noble Baroness about where the list of offences came from, for the most part they originate from the schedule of lifestyle offences included in the Proceeds of Crime Act, with which I am sure noble Lords will be very familiar. We indeed added certain offences, including the environmental offences, but only after careful consultation with stakeholders.
In particular, representations were made to us by ACPO on the proposal to include salmon and freshwater fisheries offences. We received advice from the ACPO environmental and wildlife crime lead officer, Chief Constable Richard Brunstrom of north Wales, who obviously, considering the environment that north Wales covers, has considerable experience in making such recommendations. We have consulted generally and widely among law enforcement authorities and agencies, following which we are keeping the matter under review. It is for that reason that, although I cannot accept the wording set out in Amendments Nos. 48 and 50, we want to give them careful consideration.
So we resist Amendments Nos. 49 and 51 but we are prepared to have further discussion outside the Committee about Amendments Nos. 48 and 50. I hope that, having heard that, the noble Baroness will see the rationale behind our approach and our desire to ensure that the schedule is as comprehensive as many noble Lords have suggested it needs to be.
Lord Thomas of Gresford: The noble Lord has not answered the question posed by the noble Lord, Lord Waddington: what is the theme? Surely, if someone was facilitating murder, it would be proportionate to put them under house arrest. Why should murder not be in the schedule? That was the precise question asked by the noble Lord.
Lord Bassam of Brighton: I answered that point, and I made it clear that these are lifestyle offences, which we drew from the Proceeds of Crime Act and included in the Bill. The theme running through the Bill is seriousness, which is clear from the schedule.
Baroness Anelay of St Johns: As the Minister has said that he is prepared to consider my Amendments Nos. 48 and 50 as a sensible addition, it would be churlish to say that I am not very happy with the rest of his reply; but I am not. So much still needs to be explained here. The core of my question was why these offences are in the Bill on the basis that they cannot be successfully criminally prosecuted. That was my underlying question. There is a gap here. We are being told that a civil order must be available, one assumes because a criminal prosecution will not be successfully pursued.
Baroness Scotland of Asthal: That is not the case. On the first day of Committee I tried to explain that we will have prosecuted significant players in most of
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Baroness Anelay of St Johns: We on these Benches have always made it clear that we do not want this to be either/or. We would much prefer there to be a criminal prosecution. Our concern and the concern of those who have been briefing all Members of the House is that the Government are going down the route of having that option available to them. I know that there are other amendments in the names of the noble Lords, Lord Thomas of Gresford and Lord Dholakia, that will fully explore that concern, so I shall not stray into it now.
The noble Lord, Lord Dear, very properly asked me, as did the BBA, why my amendment dealt only with robbery using firearms. My answer is very prosaic: when I looked at the list, my immediate response was, “Why not armed robbery?”. I could understand why not murder or manslaughter, because they are a matter of people being on licence. I chose armed robbery because one is not automatically on licence when one is released. This seemed to me to be a serious matter, and I tabled the amendment as a litmus paper to test where the Government were going. I simply asked the Public Bill Office to draft a probing amendment and made it clear to the office that I did not intend to divide the Committee. It came up with this amendment, which I accepted with my usual gratitude, as I had had no work to do. However, I agree with the noble Lord, Lord Dear, and the British Bankers’ Association that armed robbery carried out with other weapons is equally heinous and must be treated as a serious crime.
Lord Burnett: Has the noble Baroness wondered whether there could be circumstances in which a prosecution is followed by an acquittal, and an order is then sought for the same individual?
6.45 pm
Baroness Anelay of St Johns: I did say that I would try not to stray into the realms of later Liberal Democrat amendments, even though the noble Lord tempts me to do so. It certainly appears from the Bill that the Government intend what the noble Lord
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On Amendment No. 48, I am grateful to the Minister for at least trying to flesh out the Government’s approach to the list and how they ended up with this rather odd collection of crimes that are all serious in some respects, depending on the level at which they are committed. I was rather alarmed that at one stage the Minister said that the Government were now consulting stakeholders on the content of the list, and said later that some aspects such as environmental issues were added after consultation. His response to my original question about the consultation and where it was was rather mixed, unless I misheard him.
Lord Bassam of Brighton: For the sake of clarity, I should say that the offence list was put together at the same time. There was a continuing consultation. I should perhaps have made it clear that that particular range of offences was the fruit of that consultation with Chief Constable Richard Brunstrom of north Wales. I do not want to create the impression that there were separate consultations all over the place. This has been part of an extended process.
Baroness Anelay of St Johns: It was unfortunate that the consultation on the precise format of the list in Schedule 8 was not carried out at the time of the more general consultation. However, that has passed and we need to consider what the Minister has said today before we return on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 49 to 51 not moved.]
Clause 5 [Type of provision that may be made by orders]:
[Amendments Nos. 53 to 59 not moved.]
Baroness Anelay of St Johns moved Amendment No. 60:
The noble Baroness said: I shall also speak to Amendment No. 62. I note that Amendment No. 61 in the name of the noble Lord, Lord Dholakia, is grouped with them. Naturally, I will listen to his presentation of that before I comment on his position.
Under Clause 5(7), the actual prohibitions, restrictions or requirements that are to be imposed by the serious crime prevention order do not have to be set by the court in detail and stated in the order. They can also be,
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The court may therefore give a general indication but leave the detail to be worked out later. How would that be practical? How would it enable the person subject to the serious crime prevention order to make proper representations in court as to the potential impact of the order on them if they do not know its precise terms? The order can also include,
On our first day in Committee, my noble and learned friend Lord Mayhew of Twysden referred in particular to this part of the clause and set out the difficulties, as he saw them, with that. I agree entirely with what he said then.
This part of the clause would mean, for example, that an order could state merely that a Mr Smith shall comply with anything the police may tell him to do which they think is necessary to stop him engaging in criminal activity. That is a very broad brush and means that the police will have a far more direct way of ordering the person to report at such times as they may later direct. However, that is not what the Bill says; it leaves a wide degree of legal uncertainty, which we find unacceptable, especially in connection with an order that, if breached, could lead to up to five years’ imprisonment.
Experience to date of both ASBOs and control orders reveals several risks about how serious crime prevention orders might operate in practice. There are also dangers that an order could include standard restrictions rather than the order being tailored to the particular circumstances of the individual, and that there would be no regular review of the order with the result that restrictions would stay in place that were no longer necessary or proportionate. We will come later to the provisions in Clause 17 for variation, which we think do not necessarily resolve that issue.
Amendment No. 60 therefore deletes subsection (7) altogether, thus removing the provision allowing the courts to impose an order which did not give the detail of the prohibitions to be observed, and is simply a way of probing why the Government have drafted the subsection in this way. Amendment No. 62 would remove the powers of the courts to impose an order that might simply direct a person to do whatever a law enforcement officer might or might not tell them. It deletes the words,
The Government have provided the Committee with an example of when this provision might be used. Paragraph 33 of the Explanatory Notes states that:
“An example of this would be where a term of an order stipulates that certain information had to be provided to law enforcement officers on a regular basis, but that law enforcement officers could stipulate at a later time the means or specific timing of that information’s provision”.
There appears to be a notable distinction between this example and what the Bill would actually allow. The example refers to law enforcement officers specifying reasonable means by which a person should perform a requirement imposed by an order of the court, but not setting the requirements or prohibitions themselves. The amendment to leave out the
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The current drafting of subsection (7) is unacceptable and we will need to find a way of resolving this on Report. There are ways to achieve that, but we need to look at it carefully. I was encouraged to believe that the Government might take a reasonable course in this matter when the noble Baroness, Lady Scotland, said on the first day of our consideration in Committee:
- “subsequent to our discussion, to give it greater acuity than it has at present.—[Official Report, 7/3/07; col. 259.]
I hope that bodes well for our future discussions on this. I beg to move.
Lord Dholakia: I rise to put our arguments in support of the points made by the noble Baroness, Lady Anelay. We have been assisted in our amendment, Amendment No. 61, by Liberty. Its purpose is to remove the power of the court to sub-delegate requirements in relation to prohibitions and restrictions in serious crime prevention orders. It would allow determination of the precise means of performing an obligation imposed in an order to be sub-delegated.
As presently drafted, subsection (7) would completely undermine the principle of legal certainty and would allow the courts to confer unacceptable powers on law enforcement agencies to restrict a person’s freedom. It states that the actual prohibitions, restrictions or requirements that are imposed by the serious crime prevention order do not need to be set by the court and stated on the face of the order. They may also be “determined” in accordance with provision made by the orders, including provision conferring discretion on law enforcement officers. This would mean, for example, that a serious crime prevention order could state merely that, “Mr X shall comply with anything the police tell him to do which they think is necessary to stop Mr X engaging in criminal activity”. This degree of legal uncertainty and sub-delegation of law making to law enforcement authorities is wholly unacceptable, especially in connection with an order which, if breached, could lead to up to five years’ imprisonment.
The Government have provided an example, which I too shall quote:
“An example of this would be where a term of an order stipulates that certain information had to be provided to law enforcement officers on a regular basis, but that law enforcement officers could stipulate at a later time the means or specific timing of that information’s provision”.
We consider there to be a notable distinction between this example and what the Bill would actually allow. The example refers to law enforcement officers specifying reasonable means by which a person should perform a requirement imposed on an order by the court, not setting the requirements or prohibitions themselves. The amendment would permit the kind of scenario given in the Explanatory
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The Deputy Chairman of Committees (Lord Elton): I neglected to draw the attention of noble Lords to the fact that if this amendment is agreed to, it will not be possible to call Amendment No. 62.
Lord Bassam of Brighton: I have no intention of inhibiting the debate, but I rise just to say to noble Lords that we intend to be helpful on this amendment. That may allow noble Lords to shorten their commentary. I shall explain our thinking on this.
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