Serious Crime Bill [HL]

moved Amendment No. 60: 60: Clause 5, page 6, line 6, leave out subsection (7) 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, "““determined in accordance with provision made by the orders””." 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, "““provision conferring discretion on law enforcement officers””." 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, "““including provision conferring discretion on law enforcement officers””." 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 subsection would permit the kind of scenario given in the Explanatory Notes, but would allow the courts to impose restrictions, requirements or prohibitions only on an order itself. 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: "““It may be appropriate to amend it””—" subsection (7)— "““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.