Serious Crime Bill [HL]

My Lords, I follow other noble Lords in welcoming the Minister back to the Dispatch Box to introduce the Bill. We in this House have certainly missed her. We missed her on the Corporate Manslaughter and Corporate Homicide Bill, which has been taken very ably through the House by the noble Lord, Lord Bassam, who is sitting on her right, assisted by, I think, two noble and learned Lords. We probably also missed her on other Bills. However, I suspect that the Home Office has also missed her. By my reckoning, this is probably the 60th piece of Home Office legislation in the past 10 years since new Labour came to power. I understand that there were only 48 pieces of Home Office legislation in the previous 100 years. One suspects that the legal department, or the drafting department, or whatever it is, of the Home Office has been getting bigger and bigger—growing, I suppose, like Topsy. At the same time, I suspect that other departments in the Home Office have suffered reductions; we all know the result of that. Furthermore, it is only two years since we had the Serious Organised Crime and Police Bill. This Bill is called simply the Serious Crime Bill. One really would like to know what the Home Office is up to by introducing quite so many pieces of legislation. Will this, as I suspect quite a lot of the other pieces of legislation did, sound as though it will do a great deal but, in the event, does not achieve much at all? Is it simply the macho posturing of the Home Secretary, or is it mere legislative gesture politics, as I think I have described other pieces of legislation? This evening, we get back to the Bill itself, and I shall put several questions to the Minister, which I think she should answer. Many of them have already been asked far more ably by noble Lords from all sides of the House. Here are a few that bear repeating. First, much has been made of ASBOs and of control orders. As my noble friend Lady Anelay made clear, they are simply not working as they should. The Minister is therefore beholden to let us know how she thinks the prevention orders, which deal with serious, organised criminals, will work. Secondly, as several noble Lords have made clear, the burden of proof will be decided, as I understood it, and as I think the noble Lord, Lord Thomas, understood it, on a balance of probabilities. The noble Lord quite rightly intervened to ask the Minister whether that was the case. She said that it was, but that the burden of proof in this case would be much tougher and much nearer to the criminal burden of proof. However, the balance of probabilities in Clause 1(1)(a) and (b) looks just the same as it did, and we need more than just the Minister’s assurances to deal with this. Clearly it would be no bad thing to have an amendment to the Bill. We also need to address the question asked by the noble Viscount, Lord Bledisloe, which arose from his examination of the Bill in the Constitution Committee; namely, what evidence would be allowed to go before the High Court in these cases, and would, for example, hearsay evidence be admitted on these occasions, if I understood the noble Viscount, in the way that it would not in a criminal case? I turn to the list of offences in Schedule 1. A number of noble Lords quite rightly made light of them and I would probably want to do so. Does the noble Baroness remember the seminal Mel Brooks film ““Blazing Saddles””? The chief bad guy, when persuading his gang of hoodlums to attack some small, benighted town lists all the offences they are supposed to commit: murder, rape and arson, and on he goes. If this Bill had been passed and he was listing all the crimes they had to commit, he would have to add fishing for salmon, trout and freshwater fish with prohibited implements. It seems extraordinary. To treat it slightly more seriously, as the noble Lord, Lord Dholakia, did, how do you to explain to the man in the street or the man on the Clapham omnibus what a serious crime is when you have included fishing but not, as my noble friend made clear, armed robbery? All of us see that as a serious crime and certainly one that serious, organised criminals get involved with. Four pages of the Bill are devoted to Schedule 1 and the same four pages are repeated for Northern Ireland. That seems completely unnecessary because under Clause 2(2)(b) the judge can then add whatever he wants, a point made by the noble Lord, Lord Goodhart. The list in Schedule 1 is therefore not necessary because the judge can decide what will be a serious crime if it is not listed. The noble Baroness ought to assist us—we will certainly assist her in Committee—to bring further light to this extraordinary list. Clause 5 deals with the type of provision that may be made by orders. Clause 5(1) refers to the type of provision but adds that it does not limit the type of provision that may be made by such an order. Again, it seems that there is no limit to what the judge can do. I suspect that those like the noble and learned Lord, Lord Lloyd, who have served as judges would agree with me when I say that these are not things that would be right and proper for a judge to decide, just as it is probably not right or proper that a judge should decide exactly what is a serious crime when he cannot find it in Schedule 1. I turn to less controversial parts of the Bill. Part 2 deals with encouraging or assisting crime. The Minister made it quite clear that this was largely in response to Law Commission recommendations. She admitted that they are complex and technical and agreed that they would need careful examination, I think she is right. She said she looked forward to exploring this in detail and so do we. As my noble friend made clear, we particularly want to expose and explore those areas in Part 2 where what the Government have included is different from what the Law Commission recommended. It is important that we look at that matter in detail at the Committee stage. I turn to Part 3 and what my noble friend described as the very sweeping changes it makes to our data protection laws. This needs very careful examination. My noble friend Lord Lucas referred to the need to collect yet more information. I think I ought to warn him that if yet more was collected, particularly by the Home Office, we really do not know what would happen to it, because we know what has happened to a great deal of other information that has been passed on. There are certainly some very worrying aspects to all this, particularly in relation to data sharing between different agencies, both public and private; in other words, the ability to look at the details of one's credit cards, store loyalty cards or whatever to try to find patterns that might indicate criminality. We want to look at certain things, but we will enter that process with an open mind, as my noble friend said. The last part of the Bill on which I want to comment is Chapter 3 in Part 3. The noble Baroness will remember that Clause 75 which is, in effect, Chapter 3, relates to the extension of powers of Her Majesty's Revenue and Customs. I am always very alarmed when I see any extension being granted to HM Revenue and Customs. We know that Revenue and Customs has always had very excessive powers and probably still does. However, I am grateful for the assurance from the noble Baroness that the new powers may be used only for the investigation of serious crime. As I said, bearing in mind the already very extensive powers that HMRC has, we would certainly wish to explore that matter further. I do not wish to be negative about the Bill and I hope I have not been. I end with a brief suggestion about how the Bill can be improved and what we can do to assist further the appropriate authorities in the fight against crime. I ask the noble Baroness to take note of what the noble and learned Lord, Lord Lloyd of Berwick, said. He seeks to improve the rules of criminal evidence by allowing evidence obtained by the use of phone tapping and other electronic surveillance to be admissible in court. I hope that the noble and learned Lord will seriously consider tabling amendments about that. If he does, we shall certainly support them, and if he does not, we would be willing to table them ourselves. I hope that in advance of the Committee stage the noble Baroness will give some indication that she will be able to accept such amendments.