Serious Crime Bill [Lords]

There is little doubt that the threat to this country from organised crime remains high. In its annual plan for 2007-08, SOCA notes that broad estimates put the economic and social costs of serious organised crime, including the costs of combating it, at more than £20 billion a year. Increasingly, serious organised criminals have exploited advances in technology to develop new crimes and to transform older ones. A recent report for ACPO’s economic crime portfolio on the nature, extent and economic impact of fraud in the UK said that the known costs of fraud, and of dealing with it, amounted to at least £13.9 billion in 2005, and possibly more. Of that, fraud against private individuals amounted to £2.75 billion, and public sector fraud losses were estimated at £6.34 billion. Against that backdrop, it is right that we examine carefully the powers available to law enforcement agencies, and the measures intended to assist in the fight against serious and organised crime. However, today’s debate has highlighted starkly the questions of whether the powers proposed in the Bill are appropriate, proportionate and reasonable, and whether they will achieve the Home Secretary’s stated desire when he set the measures out. Then, he said that he wanted"““to bear down on the people actively engaged in organised criminal activity in the UK””" and"““help bring them to justice faster and more effectively.””" Today’s debate has raised some considerable doubts about that. Particular questions have been asked about whether the Bill will make a difference, as well as about its scope and proportionality. It is a pity that no Government Back Benchers thought the issue serious enough to merit making a contribution to the debate. Many of the comments made in the debate centred on part 1 of the Bill, and the proposal for SCPOs. In his extraordinarily powerful speech, my hon. and learned Friend the Member for Torridge and West Devon (Mr. Cox) highlighted many serious concerns about the import of the Bill, including what he described as the bypassing of the criminal justice system. He also asked whether the Bill was aimed at the Mr. Bigs, or the peripheral players on the outside. My hon. and learned Friend the Member for Torridge and West Devon also examined the fundamental issue of the burden of proof and the need for jury trial, and asked whether paper evidence would be submitted before a criminal trial that might have an impact on subsequent criminal proceedings. My hon. and learned Friend the Member for Harborough (Mr. Garnier) highlighted the legislative fatigue suffered by the House, and said that 34 Bills had been repealed, repealed in part or not fully implemented. That point was also made by the Opposition Front-Bench spokesman, my hon. Friend the hon. Member for Arundel and South Downs (Nick Herbert), and by the hon. Member for Taunton (Mr. Browne), who speaks for the Liberal Democrats. My hon. and learned Friend the Member for Harborough also looked at the definition of serious crime and the potential extension by order of the list of offences. He suggested that the definition of the extent and scope of serious crime, which the Opposition will contest, offered some certainty, but I wish the matter was that simple. I draw his attention to clause 2(2), which states that the court itself will be able to determine whether something is"““sufficiently serious to be treated for the purposes of an application””" under the Bill. That tells me that further uncertainty remains, and that the Bill’s elliptical definition leaves a real doubt as to the Bill’s scope and the extent of its application. The hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) made an important point about the standard of proof needed when an SCPO is applied for, and I shall say more about that later in my remarks. He asked about the justice and appropriateness of an ability to create a virtual house arrest for ever and a day. Those are very serious matters in the context of the human rights issues that he highlighted, and we shall need to examine them closely and carefully as scrutiny of the Bill continues in Committee. My hon. Friend the Member for Newbury (Mr. Benyon) spoke of the potential shift in the balance between the individual and the state, and about the implications of the Bill’s ambiguous and uncertain language. He also drew on his experience as a member of the Home Affairs Committee in respect of the gun crime amendment agreed in the other place, and we will examine that provision closely to see whether what the Minister said about its necessity and scope was correct. We will look at that matter in detail to determine whether it should remain in the Bill, subject to appropriate amendment and consideration. Finally, my hon. Friend the Member for Bromley and Chislehurst (Robert Neill) asked whether the Bill was to some extent motivated by expediency, and he also pointed to its lack of specificity. There is little doubt about the concerns that have been expressed, but the Minister in the other place, Baroness Scotland, portrayed the SCPOs as a practical way to stop crime happening. On Second Reading there, she said:"““These orders are not about punishing people without proof; they are not punitive. Rather they are proposed to be preventative.””—[Official Report, House of Lords, 7 February 2007; Vol. 689, c. 729.]" However, if prevention is the key, as she suggests, recent history indicates that the new orders are unlikely to fare well. As we have heard, SCPOs have been described as hybrid of ASBOs and control orders. Yet breaches of ASBOs are running at around 60 per cent., and there have been obvious examples of the failure of control orders—a third of them have been breached, and six people remain at large. In that context, when the Under-Secretary of State for the Home Department, the hon. Member for Gedling (Mr. Coaker), winds up, will he indicate to the House what measures will be implemented to monitor compliance with the orders, and what degree of compliance will be expected? Alternatively, is it expected that the orders will in fact be breached—as has been suggested—and that their whole purpose is to secure a custodial sentence? Is the deliberate aim of the measures to find a way round the criminal justice system? When the Minister opened the debate he was at pains to stress that that was not the case, but those issues need careful and close examination to ensure that the fears expressed with some passion from the Opposition Benches are not borne out and that if appropriate protections are still required they are included in the Bill. There is a more general question about whether the orders are the right way to proceed. The Law Society briefing for the debate notes:"““Where there is evidence that a person is engaged in criminal activity, that evidence should be gathered with a view to prosecuting them. We fear the proposed orders are a measure of expediency to deal with cases where a prosecution is not possible because there is insufficient evidence.””" It is interesting that the Bill contains no provision for consideration of whether a prosecution is possible before application for an SCPO. The Prevention of Terrorism Act 2005 incorporates such protection in relation to control orders and requires that the possibility of prosecution be kept under review for the duration of the order, yet the Bill does not. The Minister needs to explain why not. The Minister may suggest that the orders are intended to be targeted only at Mr. Bigs and that only a relatively small number will be sought, but there is nothing to stop prosecutors applying for them as a matter of course if they are not confident that they have enough admissible evidence to obtain a conviction from a jury. The position is made more complex by the likely interpretation of the orders by the courts—a point made eloquently by my hon. and learned Friend the Member for Torridge and West Devon and also by the hon. Member for Meirionnydd Nant Conwy. The McCann case in the House of Lords was highlighted in the context of antisocial behaviour orders; it was suggested that in certain circumstances, for fairness, something close to the criminal standard would be applied, yet clauses 34 and 35 show clearly the intention that the civil standard should apply. We need clear legal analysis of the impact of those provisions. If the House, in full knowledge of the McCann judgment, decides that it wants to include that provision in the Bill, is it open to the courts to say that is what would happen? I hear what the Minister has said and I note the comments of Baroness Scotland in the other place, but there is room for uncertainty. We should always aim for certainty in legislation, so we should consider including a provision in the Bill so that the matter is put beyond doubt. The Bill provides for the admissibility of intercept evidence in cases involving serious crime. For the reasons outlined by my hon. Friend the Member for Arundel and South Downs, we are reserving our position on those provisions until the basis of the Government’s approach to the Privy Council review is clear. The Bill includes provisions to facilitate greater data sharing and data mining in the fight against fraud. It is entirely appropriate that we make the best use of data systems to detect and prevent fraud, but the measures must be proportionate and balanced against the need for general personal privacy. The Bill introduces wide-ranging powers that could allow, for the first time, widespread data sharing between the public and private sectors. It could overturn the basic data protection principle that personal information provided to a Department for one purpose should not in general be used for another. Instead, information will normally be shared in the public sector, provided it is in the public interest. Although the Audit Commission’s national fraud initiative, on which the Bill’s data-mining provisions are based, is important, it is essential that protections be clear and robust. As Members have said, random computerised phishing exercises into our personal data would not be acceptable. In the other place Baroness Scotland gave assurances about the data-sharing provisions. She said that the Government"““will ensure that the provisions are used to target suspected fraudsters rather than simply those who are potential fraudsters””." The Minister made the same point when he opened the debate. Baroness Scotland also said that the Government would ensure that"““the arrangements are transparent and command public confidence, are proportionate and are subject to periodic review””.—[Official Report, House of Lords, 7 February 2007; Vol. 689, c. 732.]" The role of the Information Commissioner will be an essential part of ensuring that the Bill’s provisions are appropriate, and it may need strengthening in that context. We shall examine that point in greater detail in Committee. We look forward to the detailed proposals for a code of practice—a promise made in the other place and reconfirmed today. Some progress was made on the issue in the other place and I pay particular tribute to the work of my noble Friend, Baroness Anelay, but there is more work to be done. The Information Commissioner has warned of the steady drift to a surveillance society, which the provisions in part 3 could indicate in terms of the Government’s approach to taking, retaining, sharing and searching our personal information. Protections may exist under the Data Protection Act 1998 and the Human Rights Act 1998, but the House must be satisfied that the Bill’s provisions are sufficiently focused on tackling crime and that appropriate protections are afforded to ensure that the general rights of ordinary members of the public are not compromised by wide-ranging snooping powers justified on the basis that something useful ““might come up”” from the information obtained. The Bill will transfer the Assets Recovery Agency to the Serious Organised Crime Agency. Despite what the Minister for Security, Counter Terrorism and Police says, the ARA has been a failure. The Chairman of the Public Accounts Committee, my hon. Friend the Member for Gainsborough (Mr. Leigh), recently summed up its performance by pointing out that it had spent £65 million but recovered only £23 million; has no complete record of the cases referred to it; has worked on more than 700 cases but managed to recover assets in a mere 52; and that 90 per cent. of the financial investigators trained by it have not even completed the necessary courses. As my hon. Friend said,"““the criminal fraternity are laughing at us, are they not?””" It is thus hardly surprising that the Government felt compelled to take action, which is why the Bill proposes to transfer the assets recovery functions of the agency to SOCA and its training functions to the National Policing Improvement Agency. However, the National Audit Office report on the ARA made various recommendations that will apply equally to the new bodies responsible for its current functions; case management was highlighted as a particular weakness. In assessing the provisions for transferring the operations of the ARA we will need to be satisfied that there will be appropriate measures to address the evident performance failures and the issues highlighted by the NAO report. Transparency is needed, particularly in the future performance of SOCA, which has not been subject to detailed public scrutiny to date. In evidence to the Public Accounts Committee, the Comptroller and Auditor General gave an assurance that it would continue to be possible to assess whether the costs of the asset recovery function of the SOCA exceed or are less than the assets it recovers, confirming that a proper system of management accounts will be put in place. For the House to have confidence in the arrangements proposed in the Bill, mechanisms for proper, robust, external scrutiny of SOCA are essential. After the failure of one agency, it is important that the House can review the performance of its replacement and that the information can be made public. We welcome the inchoate offences provisions, which build on the excellent work of the Law Commission. In the other place, the Government set out some of the rationale for their divergence from some of the Law Commission’s original proposals, but we will use opportunities in Committee to probe the detail of their proposals to ensure that the appropriate balance has been struck. We shall also examine carefully the extended powers being granted to Her Majesty’s Revenue and Customs. There is a shared desire on both sides of the House to ensure that those involved in serious crime—crime that harms this country and damages the lives of those it touches—are brought to justice, that the law enforcement agencies are given appropriate powers to disrupt the activities of organised criminal gangs, and that the Government and other agencies are able to use information in a constructive way to facilitate the fight against fraud. However, serious questions remain as to whether the provisions of the Bill will advance this cause and whether, by virtue of the breadth of the Bill’s scope and the practical operation of its provisions, it may undermine some of the fundamental values and freedoms that the House should be seeking to uphold and protect. That is where Conservative Members will maintain our focus and will challenge the Government robustly when we believe that they fall short.