Serious Crime Bill [Lords]

It was a pleasure to hear what may have been the farewell speech of the Minister for Security, Counter Terrorism and Police in his current capacity, with only 15 days to go until Gordon judgment day—G-day. Perhaps the hon. Gentleman will face ministerial oblivion, or perhaps he will be elevated to a greater role—we await news of his fate with interest. He gave a typically robust performance this afternoon. It is important to tackle serious crime; offences covered by the Bill include people trafficking and child sex crimes, which have a devastating impact on communities, families and, most important, the victims. I am sure the House would agree that, whether in the media or in one’s community, it is infuriating to see people behaving as though they were immune from prosecution and above the law—the so-called Mr. Bigs. I understand why the Government share the public’s frustration about such people. Over the past 10 years there has been an explosion in many categories of serious crime. Gun crime has gone up markedly since 1997. Knife crime has risen substantially over the past 10 years; yesterday, we were given a terrible reminder of the devastating effects of people carrying knives. People trafficking has gone up substantially over the past decade. There is no doubt about the problem of serious crime; the question is whether the Bill addresses it as effectively as it could. Before I get down to the nitty-gritty of the Bill, I shall make three broad observations about what may have informed the Government’s thinking about it. First, it is fair to say that they are hopelessly addicted to what the Prime Minister famously described as ““eye-catching initiatives”” on crime. I shall briefly revisit the e-mail from ““TB”” of 29 April 2000, in which he said:"““On crime, we need to highlight the tough measures…we are lacking a tough public message…we should think now of an initiative, eg locking up street muggers. Something tough, with immediate bite which sends a message through the system.””" At that point, obviously thrashing around for a few more examples of what might send out the right media message, he went on:"““Maybe, the driving licence penalty for young offenders””—" after seven years, we have still not seen that one—"““but this should be done soon and I, personally, should be associated with it.””" The reason why I quoted the e-mail so extensively is that the Bill exhibits the same traits. We are being invited to bring into our vocabulary new expressions such as the ““serious crime prevention order””—the SCPO, or perhaps there is another way of describing it. Perhaps Ministers did not think that was catchy enough so they came up with ““gangster ASBOs”” to capture with greater force the essence of the legislation. It is worth recalling the words of Louise Casey, the Government’s co-ordinator for respect—I did not make up that title. Recently, she was reported as saying that she ““punched the air”” when she heard the word ““ASBO”” on EastEnders. That, in a way, sums up very well what the Government regard as the test of their eye-catching initiatives. Do they get mentioned on prime time TV? Do they enter the popular vocabulary? It is not necessarily to do with whether they are as effective as they might be in tackling crime and in passing the test of scrutiny in the House. No matter that in some parts of the country three quarters of ASBOs are now breached. As long as the co-ordinator for respect can punch the air because people watching ““EastEnders”” know what ASBOs are and regard the action taken by the Government as sufficiently tough, the initiatives will have achieved their objective. This is the era of soundbite and spin—I hope it will last for precisely one more fortnight, but I suspect that it will not—and the Bill has to be seen in that context. My second observation has been touched on earlier and it is that the Government are hopelessly addicted not only to eye-catching initiatives but to legislation. It is worth stepping back and looking at what the Government have put through the House in this broad field since 1997. Labour has created more than 3,000 new criminal offences, passed 115,000 pages of legislation and introduced more than 50 Bills, including 24 criminal justice measures. In the 60 years between 1925 and 1985, Governments of different colours managed to get by with only six criminal justice Acts, an average of one every decade. This Labour Government have been getting through them at the rate of more than two a year. If I list the measures in this broad area that have been put before the House in just this Session, you will, Madam Deputy Speaker, get a sense of the legislative frenzy within which the Bill sits. The list contains the Fraud (Trials without a Jury) Bill, the Legal Services Bill, a criminal justice Bill, an asylum and immigration Bill, the Offender Management Bill, a counter-terrorism Bill, the Tribunals, Courts and Enforcement Bill and this, the Serious Crime Bill. It is no wonder that Ministers have little time to run their Departments effectively. They are so busy trying to make a splash with legislation in the House. My third observation is how hopelessly cavalier the Government are with the foundations of our criminal justice system. What am I talking about? I refer to the very essence of our criminal justice system and the features that, as children growing up in the United Kingdom, one learned to value and regard as important. Those features include trial by jury, the presumption of innocence and the right to a fair trial before an independent court. These are not niceties and added extras, but fundamental protections for the individual citizen from the excessive power of the state and they have been developed over many centuries. We have to be extremely cautious about regarding them lightly and disregarding them quickly in the House. I shall concentrate my specific comments primarily on part 1 and to a lesser extent on part 3. The big issue that we need to consider today and in the Bill’s remaining stages is that part 1 seeks to restrict the liberties of people who may never have been convicted of any criminal offence. The whole notion of a person being innocent until proven guilty—as I have said, I was always given to understand that it is the fundamental right of every British citizen to start with that assumption made about their guilt or otherwise—has been stood on its head. Instead, the High Court merely has to be ““satisfied”” or have ““reasonable grounds”” to issue a serious crime prevention order. That is a considerably lower threshold than innocent until proven guilty and the other safeguards that I have touched upon. That is why the Liberal Democrats tabled an amendment in the House of Lords that would add after the word ““satisfied”” the phrase ““beyond reasonable doubt””. That was rejected in the other place, but we intend to revisit the matter in Committee if the Bill is given a Second Reading. The Minister in the other place, Baroness Scotland, admitted that what I have described is indeed the case. Let me take the House briefly through the relevant passage of her speech. In exchanges between Conservative Front-Bench Members and the Minister for Security, Counter Terrorism and Police, we were told that the safeguards were rigorous and that there was not as much need for concern as I have claimed. However, Baroness Scotland said:"““These are civil orders, so this involvement will have to be proved to a civil standard. But I know that many of your Lordships will be only too aware—so I hope that noble Lords will forgive me if I emphasise it—that where serious assertions are made, the civil standard can be virtually the same on certain issues as the criminal standard.””" Members should note that she said ““virtually the same””, not ““the same””, and ““on certain issues””, not ““all issues””. She went on to say:"““Recent case law has stated clearly that in proceedings like these the court will look at the civil standard as a sliding scale, with the likely standard of proof for these orders being very close””—" just ““very close””—"““to the criminal standard of ‘beyond reasonable doubt’.”” —[Official Report, House of Lords, 7 February 2007; Vol. 689, c. 729.]" That statement is full of caveats: ““virtually the same””, ““on certain issues””, ““the likely standard””, and ““very close””. That falls a long way short of the reassurance that the Minister for Security, Counter Terrorism and Police sought to provide this afternoon. As an example of the low threshold, clause 2(1) states:"““For the purposes of this Part, a person has been involved in serious crime in England and Wales if he…has conducted himself in a way that was likely to facilitate the commission by himself or another person of a serious offence in England and Wales (whether or not such an offence was committed).””" Again the word ““likely”” is used and the offence itself does not even need to be committed. We talked earlier about the amendment from Lord Lloyd of Berwick, which I will come to in due course. When speaking on Second Reading in the other place, he got to the nub of how muddy these parts of the legislative waters are. He said:"““I could understand and sympathise with prevention orders in the case of those who have been convicted of a serious crime as part of the sentence imposed by the court. I could understand prevention orders in the case of those convicted of serious crimes by a foreign court, assuming we can ever find out who they are. That all makes perfectly good sense to me, but I simply cannot understand how one can justify prevention orders in the case of a man who has committed no crime—indeed, who may have done nothing more than facilitate the commission of the crime by others, even though he did not intend to facilitate the crime and even though in fact the crime has not been facilitated, but only made more likely, however one is going to decide that and whatever it may mean.””—[Official Report, House of Lords, 7 February 2007; Vol. 689, c. 741-42.]" We find ourselves in a pretty difficult position when we are trying to legislate on such shifting sands and put in place a legal framework that can stand the test of time and which individual citizens can feel confident about. Some serious sanctions exist and can be applied. People’s finances and work arrangements, and even their ability to travel internally within the United Kingdom, can be restricted. A wide range of offences are involved, as was touched on earlier. Most people would regard arms trafficking or child sex offences as serious crimes, but the definition of a serious crime is loosely drawn. As has been said many times in the other place and here this afternoon, it includes salmon fishing. I do not doubt that somebody who owned salmon and did not wish it to be fished would be greatly upset by that, but it is hardly in the same category as arms trafficking and child sex offences. Other acts that are fraudulent and certainly criminal, such as the pirating of DVDs, appear to fall under the scope of the Bill, too. ““Serious crime”” is very widely drawn indeed; it includes crimes that some people will feel ought to be punished, but that perhaps ought not to fall within the scope of the Bill. Of course, if people fall foul of the sanctions that have been put in place with respect to their internal travel arrangements or work arrangements, and breach their serious crime prevention order, they can go to prison, so a civil offence can lead directly to a criminal sanction. There is also concern that the measures will be seen by many as a soft alternative to prosecution, and that people who ought appropriately to be convicted, after evidence has been collected and a court case has ensued, will not go through that full, rigorous process. The thinking appears to be, ““We know who is causing the problems, and we are keen to get them, one way or another; if we cannot get them through conventional means, we had better devise some other means of catching them.”” That is a difficult basis on which to put together criminal justice legislation, and it also means that some serious offenders who ought to feel the full effects of the law may well end up getting away with far softer punishments than they would otherwise have had. Part 3 of the Bill concentrates on fraud and data sharing. Like everyone else in the House, I deplore fraud, and I accept the arguments often made to say that it is certainly not a victimless crime; all of us can, collectively, be victims of it in many different ways. There are occasions when I wish that the Government, in putting in place schemes such as tax credits, would ensure that they were sufficiently tightly administered and were not so prone to fraud, but leaving that to one side, I think that we could all agree that measures to tackle fraud have desirable objectives. However, I and others are extremely concerned about confidentiality, and we are alive to the dangers of the surveillance state. I am pleased that the Select Committee on Home Affairs has decided to make it its business to consider the surveillance state and the degree to which people who justifiably want their security enhanced and strengthened, using modern surveillance techniques, need to be reassured about their privacy and the protection of their liberties. That is the balance that we need to strike in a state such as ours. Of course, the presumption in the past has been that when a citizen has provided his or her details to the state for a specific purpose, the details would be held only for that purpose. I accept that that is a difficult area, inasmuch as it is important that the Government be efficient in their use of data. People may on occasion be frustrated or exasperated to find that a piece of information that they gave to one Government agency has not found its way to another, as they assumed that it would, and when that would have made their interaction with the Government much more efficient, effective and smooth, so I appreciate that we are not talking about absolutes. None the less, my concern, and the concern of many other Members, is that as soon as data are shared widely across Government, and by Departments for which the data were not intended, there is a serious risk that they will be used inappropriately, whether for phishing expeditions, as was said earlier, or for any other reason. I am concerned that the Audit Commission has been given a role in respect of data. I always thought that the Audit Commission, set up by Mrs. Thatcher, was designed to try to ensure that we received higher quality public services that were better value for money. We could have a separate debate about whether it achieved, or continues to achieve, that; after all, millions of pounds of taxpayers’ money are spent on it. However, I had never realised that the Audit Commission was intended to snoop on individual citizens to make sure that our data were being matched in a way that was desirable for the Government. It is interesting that as far as I am aware—the Minister may correct me—no estimates have been given of the potential financial savings resulting from the proposal. It is legitimate to examine this aspect. If we are to extend the power and scope of the state in such a way that the privacy of individuals may be compromised, it would be useful to know what the up side is in terms of revenue savings. If we do not know that, it is hard to make a value judgment. There are many, myself included, who will feel that the amount of money is immaterial because there are issues of principle at stake to do with the liberties of the individual citizen, but others may regard that as a reasonable quid pro quo, assuming that the amount of revenue saved is considerable. At present we are not in a position to make that judgment. I am also concerned by the ability of the public sector and the private sector to share data. That was confirmed by the Minister, Baroness Scotland, in the other place when she said:"““The provisions of this Bill will enable the public sector to share information with the private sector, and vice versa.””—[Official Report, House of Lords, 7 February 2007; Vol. 689, c. 731.]" That is quite clear. Last week at the Home Affairs Committee, the witnesses included a representative of Tesco and a representative of the company that makes Nectar loyalty cards for Sainsbury’s and others. They were cross-examined by the Committee in detail. People who were present would have been surprised, and some may even have been shocked, by what they heard. Of course, when one stops and thinks about it, it seems obvious. If people visit one of those stores and choose to have one of their cards—I accept that that is a choice; it is not compulsory, but millions of people make that decision—the time and location of their purchase is logged. In other words, each time they use the card, the firm knows where in the country they are. The contents of their purchase are also logged, including items that may be confidential or embarrassing—medication, for example. People might not wish to have such information widely shared. It was confirmed by the witnesses at the Committee sitting that that information can already, in some circumstances, be shared with the police. So there is an individual, thinking that all they are doing is collecting credit points in order to buy another few bottles of wine or another few chocolate bars, but if the circumstances are such that it is deemed necessary, the state can use that information to track the whereabouts of that citizen. There may be occasions when that is useful and perhaps even desirable, but it is worth while scrutinising in some detail, because many people will have anxieties about that. It is interesting that we in the United Kingdom seem to have no compunction about giving a great deal of information to the private sector, but we have some reservations about giving it to the state. As soon as the distinction is blurred, people may regard the issue differently. The amendment in the other place that attracted most attention was that of Lord Lloyd of Berwick, which was passed by 182 votes to 121, on the use of intercept evidence. I read in one of the Sunday newspapers that the idea of Members of this place considering the use of intercept evidence was a brilliant and original scheme devised by the right hon. Member for Witney (Mr. Cameron), which came as news to me because I had heard Liberal Democrat Members putting forward exactly such a proposal many years before it appeared to come to the attention of the leader of the Conservative party. None the less, I welcome the growing consensus in this House on the use of intercept evidence in some court cases where it is deemed to be necessary and appropriate—although that consensus seems only to be making a certain amount of progress on the Government Front Bench. When I recently asked the Home Secretary whether intercept evidence would be a useful measure to tackle terrorism and, by extension, some serious categories of crime, he said:"““Let me deal first with the question of intercept evidence in court. We have been looking at that for a considerable time, and both Opposition Front-Bench teams know that the disadvantages so far outweigh the advantages that what they are suggesting meets with complete opposition from our security and intelligence services. They are the front line, charged with the national security of this country. Consistently, time after time, they have made it clear to both Opposition Front-Bench teams that they are opposed to that approach. When those who speak for the Opposition parties make that proposal, they should admit that they are disagreeing with those who are primarily charged with the nation’s security.””—[Official Report, 24 May 2007; Vol. 460, c. 1432.]" I did not properly capture the force with which the Home Secretary made those comments. He was full of scorn and derision for the people who had made that suggestion. At the same time, the Leader of the House, a former Home Secretary himself, was sitting next to the Home Secretary gesturing in a way that suggested that he was extremely supportive of the Home Secretary’s view that intercept evidence should not be used in court cases. Then the Prime Minister in waiting, the current Chancellor of the Exchequer, suddenly conveyed a greater interest in seeking to establish a consensus and the goal posts appeared to have moved. If that is the case, we welcome it. It is not necessarily a way of conducting good government, but perhaps once this has been considered at length by right hon. and hon. Members on both sides of the House, the outcome will nevertheless be the desirable one. Everyone wants serious action to be taken on serious crime. Serious crime has exploded under this Government, but we should not always assume that the legislation that is brought before us has the intended consequences that Ministers claim for it here. Today, I received a written answer from the Under-Secretary, the hon. Member for Gedling (Mr. Coaker), who will be familiar with it, having crafted it in detail and provided it for me. My question was fairly straightforward. On the basis that the Criminal Justice Act 2003 put in place a mandatory five-year sentence for people carrying an illegal firearm, I asked how many of those who have been convicted of carrying an illegal firearm since then have been sent to prison for five years. One would assume that the answer was 100 per cent., because that is what a mandatory sentence would imply. However, as the Minister will know from the answer that he gave me, the actual figure is 37.9 per cent. In fact, people who have been convicted of carrying an illegal firearm are given, on average, sentences of less than four years, despite the mandatory five-year sentence. I give that example because such items of legislation keep being put before us, and Opposition parties keep being told that if they do not endorse them in their entirety we are somehow failing in our duty to the citizens of this country. Such is the frenzy, the fury and the volume of legislation that when we return to it a few years later to see whether it had the desired effect that Ministers claimed on the Floor of the House, we tend to find that in reality the story is very different. It is therefore only right to consider the measure in that light and realise that tough talk and eye-catching initiatives but lack of follow-through have made many people in this country cynical about the Government and their ability to tackle crime. We want action on fraud and serious crime and a Government who respect historic British liberties. We will scrutinise the Bill in detail in Committee, but at this stage, most people who are trying to achieve that balance believe that the measure fails the test.