Serious Crime Bill [HL]

My Lords, back in 1760, Sir Francis Bernard, the governor of Massachusetts—then a British colony—adopted the practice of issuing writs of assistance. Their effect was that any place could be searched at the whim of the holder, and the searchers were not responsible for any damage they caused. The constant use of these writs of assistance proved such a burden to the colonists that they seriously considered their relationship with Britain. After one or two skirmishes around Boston, including the Boston Tea Party, the American revolutionary war broke out and America consequently became independent. Following the defeat of the British forces at Yorktown, Lord North, the Prime Minister responsible for this fiasco, was defeated in a vote of confidence in Parliament and resigned in March 1782. He is famously said to have cried, ““Oh God, it’s all over, it’s all over””; the parallels with the present are obvious. As a result of that, the fourth amendment to the American constitution, a significant part of their Bill of Rights, outlawed general search warrants and specified that judicially sanctioned search and arrest warrants must be supported by probable cause and be limited in scope, according to specific information provided by a person, usually a peace officer, who has sworn by it and is therefore accountable for it to the issuing court. So what an excellent wheeze Part 3 of this atrocious Bill is. It introduces into our law a high-tech version of the writ of assistance. If the Bill goes through, the Audit Commission, whose job we thought was to concern itself with the efficient and effective delivery of public services, will appear in a new guise as spymaster general. Nothing could more appropriate for this Government, with their authoritarian bent. New powers are to be given to the Audit Commission to obtain, "““such data … as the Commission … may reasonably require for the purpose of conducting data matching exercises””." That is data from public bodies subject to audits, such as police forces, emergency services, local authorities, NHS trusts and so on; and from any other bodies that voluntarily supply databases at the commission’s request. Data matching—the focus of Part 3—is otherwise known as data mining. It is a process whereby large quantities of information about many individuals are gathered from many sources and are mined by mass cross-referencing in order to throw up patterns of behaviour. It is the sort of thing that the supermarket card is designed to do to demonstrate to the management whether a customer buys buy tins of salmon or jars of Marmite. The patterns of behaviour thrown up by the data matching in Part 3 may or may not be meaningful; it is all a matter of chance. Depending on how they are interpreted, the Audit Commission will be able to point the finger at what is deemed to be a suspicious constellation of characteristics or behaviours in an individual. Instead of a system in which a person is suspected of a crime and is then investigated by the police, a trawl using the latest computer techniques will throw up names and those people will be investigated because of their characteristics or behaviours. Suddenly, we have grounds for a serious crime prevention order under Part 1. That is why I call it a modern day writ of assistance. It is not necessary for there to be evidence of wrongdoing, a probable cause or a warrant based on reasonable suspicion, nor is there the accountability of having to go to a magistrate to get a warrant. It is no wonder that in her letter yesterday to the Constitution Committee the noble Baroness, Lady Scotland, said that the orders are not aimed at the one-off criminal but at those who conduct their lives and affairs in a criminal way; in other words, who may be thrown up by data-matching or data-mining. This is the Serious Crime Bill, but when it comes to data sharing—the other limb of Part 3—the illustrations that the noble Baroness gave related to benefit fraud, housing benefit and matters of that sort. The Data Protection Act is given lip service in the Bill and is then circumvented. The Bill provides that a specified anti-fraud organisation, which is any unincorporated association, body corporate or other person which has as one of its purposes the enabling or facilitating of any sharing of information to prevent fraud—and we were told there are 250 of them—may require a public authority, for the purposes of preventing fraud, to disclose information of any kind about an individual, including sensitive personal information, either to itself or to any other person in accordance with any arrangement it may chose to make. Confidentiality is overridden, the Data Protection Act is overridden, no general code is proposed to govern the arrangements and the circumstances in which the disclosure is to be made are not to be limited in any way. The Bill proposes that databases can be exchanged and data can freely be thrown around without the safeguards of the Data Protection Act or any regard for confidentiality. It is said to be a narrow gateway to obtain the information, but the Bill contains powers to extend data matching to other bodies and for purposes beyond those related to crime. Under the Bill, the Home Secretary can expand the scope of the provisions even further. For example, he can do so to assist in the recovery of debts owed to public bodies, such as congestion charges. He can have access to data obtained by public authorities for those purposes. The Home Secretary can add to the list of bodies that may be required to hand over information to the Audit Commission. There is nothing in the Bill to protect the interests of individuals or classes of individuals. I know that we shall hear about the Audit Commission’s code of practice that will be put forward, but that is not to be subject to parliamentary approval. Unlike codes such as PACE and so on, there will be no parliamentary approval for the Audit Commission’s code of practice in carrying out these things. I turn to assets recovery. We know that the Assets Recovery Agency has been a complete failure. It has recovered far less than its cost and is to be abolished. We learnt in a Channel 4 programme the other day that the people employed by SOCA sit there twiddling their thumbs. They have nothing to do. The synergy to which the noble Baroness referred is the synergy of two failed organisations put together. The noble Baroness then has the chutzpah to say that we will save billions of pounds by this means. It is ridiculous. And I have not said anything about Part 1 yet. The Select Committee on the Constitution in its report earlier this week said on this Bill: "““We draw to the attention of the House the fact that the far-reaching restrictions of a SCPO may be placed on a person against whom no criminal proceedings have been instituted or who has been convicted of no criminal offence. Moreover, the restrictions which can be imposed are not limited to conduct forming part of the particular type of crime which has been proved, by civil standards, against the defendant. ASBOs and other types of control order … generally deal with small-scale anti-social behaviour and have little impact on third parties. SCPOs will have a much wider reach””." It concluded in this way: "““A broad question for the House””—" it is for us— "““is whether the use of civil orders in an attempt to prevent serious criminal activity is a step too far in the development of preventative orders. Whether or not the trend towards greater use of preventative civil orders is constitutionally legitimate (a matter on which we express doubt), we take the view that SCPOs represent an incursion into the liberty of the subject and constitute a form of punishment that cannot be justified in the absence of a criminal conviction””." That is what the cross-party Constitution Committee of this House thought of these proposals. I have read the response of the noble Baroness, Lady Scotland, which I received today. She claims that a recent report in December 2007 by the National Audit Office suggests that ASBOs were highly effective as part of a tiered approach to tackling the overall problem of anti-social behaviour within an area. I do not know where the National Audit Office gets its statistics, since the Home Office does not publish them in full and itself complains that there is under-reporting of ASBOs. The British Crime Survey found that 17 per cent of people canvassed perceived a high level of disorder in their local area—the same as the previous year—and that the proportion perceiving young people being drunk had increased. It is constant anti-social behaviour orders: they have been going since 1999 and have shown no marked impact. Meanwhile, according to such Home Office statistics as do exist, 9,253 ASBOs were issued to December 2005, of which 47 per cent were breached and 55 per cent of those breaches resulted in custody. So ASBOs are not the highly effective success that the noble Baroness has claimed. They have not had any impact; all they have done is to have people sent to prison for matters which were not offences. That is the template for the serious crime prevention orders that we are now being asked to accept. If you have a case, you should charge, as the noble Baroness, Lady Anelay, said. Bail conditions can be imposed just as restrictive as anything proposed under the orders. Where prosecution is too troublesome, trial too long or where you have to rely on rumour, gossip or lifestyle as thrown up by the data-mining provisions to which I preferred, go for what the Minister calls the new tool, the SCPO. It will be a greater failure than ASBOs. The imposition of such an order is based on a determination that an individual has done something wrong. It does not have to be proved, except by a civil balance of probabilities. The orders will have an effect on reputation, on people's businesses and on their home lives. The restrictions are deliberately vague. Only examples of restrictions are given in the Bill, so that the order can be flexible. Clause 5(7) states that the restrictions do not need to be stated in the order but are at the discretion of law-enforcement officers, so the police can make their own restrictions. It is not like an ASBO, where the restrictions are told in court to an individual. The restrictions can be imposed by law-enforcement officers themselves. Are they proportionate? Can they be challenged? There is no provision for review. All that is relied on is the fact that the orders can, if there is no conviction, be made only by a High Court judge. There is a huge amount of work for High Court judges. Only today, I received a copy of a letter from the Lord Chief Justice about the Tribunals, Courts and Enforcement Bill, saying that he did not have enough High Court judges to go around. If the Government proposals go through, if they have their way, the streets will be full of people in red dressing gowns with wigs on running around granting the orders like confetti. Everyone has a right to liberty and to security of the person under Article 5 of the European Convention on Human Rights, which the Government were good enough to make part of the law of England and Wales and of Scotland. Restrictions on liberty can be justified only by due process of law. Whatever credentials the party which is now in government had for civil liberties have long been lost. Oh God, Mr Blair, it’s all over, it’s all over.