Clause
3
Involvement
in serious crime: Northern Ireland
orders
Question
proposed, That the clause stand part of the
Bill.
Mr.
Hogg:
I shall not speak at any length, because the
provisions for Northern Ireland are the same as those in clause 2. It
is none the less regrettable that there is not a Member from the
Province on the Committee. We are dealing with matters of importance to
the Province, and I am rather surprised that it does not have
representation.
If I
might just briefly adopt the mantle of an Ulsterman—I am an
Ulsterman by background, though some generations ago—I
respectfully say to the
Committee that our arguments on clauses 1 and 2 have equal application
to clause 3. I am sorry that there is not an Ulsterman here to defend
the interests of the Province. I shall not press the matter to a
Division, because we have already discussed clauses 1 and 2 and there
is no point in revisiting
them.
Clause 3
ordered to stand part of the
Bill.
Schedule
1
Serious
offences
Mr.
Coaker:
I beg to move amendment No. 24, in
schedule 1, page 48, line 25, at
end
insert—
‘Armed
robbery etc.
4A (1) An
offence under section 8(1) of the Theft Act 1968 (c. 60)
(robbery) where the use or threat of force involves a firearm, an
imitation firearm or an offensive
weapon.
(2) An offence at
common law of an assault with intent to rob where the assault involves
a firearm, imitation firearm or an offensive
weapon.
(3) In this
paragraph—
“firearm”
has the meaning given by section 57(1) of the Firearms Act 1968
(c. 27);
“imitation
firearm” has the meaning given by section 57(4) of that
Act;
“offensive
weapon” means any weapon to which section 141 of the Criminal
Justice Act 1988 (c. 33) (offensive weapons)
applies.’.
The
Chairman:
With this it will be convenient to discuss the
following: Amendment No. 23, in
schedule 1, page 48, line 25, at
end
insert—
‘Robbery
using an offensive weapon or
firearm
4A An offence under section
8(1) of the Theft Act 1968 (c. 60) where it is alleged that, at some
time during the commission of the offence, the defendant had in his
possession a weapon specified by the Secretary of State under section
141(2) of the Criminal Justice Act 1988 (c. 33), or a firearm or
imitation firearm (as defined by section 57 of the Firearms Act
1968(c.
27)).’.
Government
amendment No.
29.
Mr.
Coaker:
I hope that I can help the hon. Member for Arundel
and South Downs and his colleagues with the amendment. I do not intend
to delay the Committee for long, because hon. Members might wish to
make other points later in our discussion. We have discussed the
reasons behind our definition of serious crime in schedule 1, as well
as those for giving the court discretion in respect of that definition.
In dealing with this group of amendments, we will consider the contents
of the schedule.
Some
concern has been expressed about why we have included some offences and
left out others that it might have seemed appropriate to include. To
the right hon. and learned Member for Sleaford
and—
Mr.
Hogg:
Sleaford and North
Hykeham.
Mr.
Coaker:
Do you know, I am absolutely terrified of getting
the name of the right hon. and learned Gentleman’s constituency
wrong? I am going to write it in big letters. In response to what he
said, I should like to say that I believe that prostitution and keeping
a
brothel are serious offences. It is right that they should be listed in
the schedule and that, in relation to such an offence, the High Court
should be able to consider whether a serious crime prevention order is
appropriate in the
circumstances.
The
schedule is based to a large extent on schedule 2 to the Proceeds of
Crime Act 2002, which sets out “lifestyle offences” in
which serious criminals regularly engage. In developing the list for
the purposes of this legislation, we also thought about other serious
offences against which it might be suitable to use the orders. Two
criticisms of the orders have been made. The first questioned why we
did not include offences against a person, which I think we dealt with
in a previous discussion. The second criticism related to environmental
offences. The hon. Member for Taunton, among others, raised that point.
Those offences were included on the recommendation of the Association
of Chief Police Officers lead for wildlife and environmental crime.
Environmental crime, such as the poaching of fish or dumping of waste,
can cause both ecological and economic harm to local communities.
Ecological harm, in particular, is the perfect example in which
prevention is most assuredly better than a cure, which makes the orders
a potentially valuable tool. The inclusion of environmental offences is
extremely important.
I recognise that it easy to
make a debating point of sorts by saying that a serious crime
prevention order will be made against anybody who takes one fish from
the lord of the manor’s river or trout farm. In response, I say
that we are talking about serious crime. As we all know—I said
it this morning and Lord Dear said it—chucking an explosive into
a pond is more serious than taking the odd fish, although that is
illegal as well.
The
Government amendments relate to two areas where we think it is
important for the orders to be an option. In response to a helpful
suggestion from a colleague of the hon. Member for Arundel and South
Downs in another place, Baroness Anelay, we agreed that we could
consider adding robbery to the schedule, where it is committed with a
firearm or offensive weapon. There is no specific offence of armed
robbery, but we believe that parliamentary counsel’s drafting of
Government amendments Nos. 24 and 29 meets the commitment that we made
in the other place. I hope that those Government amendments meet the
concerns of Baroness Anelay, and that the hon. Gentleman will not press
amendment No.
23.
5.15
pm
Nick
Herbert:
I am grateful for the Minister’s
explanation and for his amendment. My noble Friend Baroness Anelay in
another place tabled the original amendment to bring armed robbery
within the scope of the offences listed in the Bill as a probing
amendment. It was designed, as the Minister picked up on, to try to
tease out why certain offences that do not seem to be so serious, such
as environmental offences, including salmon fishing, have been included
in the schedule, yet offences involving significant violence, which the
public would consider to be part of the problem of serious crime, have
not been included. That was her purpose in tabling the amendment in
relation to armed robbery.
My noble
Friend then received significant support from the industry, which was
keen, despite its reservations about the operation of serious crime
prevention orders, to which I referred this morning, to have a specific
offence included that would cover armed robbery. The British Bankers
Association pointed out that last year its members suffered 119 armed
robberies, incurring significant losses and resulting in injuries to
staff and customers. There is growing awareness in and outside this
place of the problem of armed robbery and the particular pressure that
it puts on the industry and on staff who are victims of
attacks.
The
Government agreed to look at the amendment to see whether it could be
tidied up, and have now tabled their own. I do not wish to sound
churlish, but while I am grateful to them for accepting my noble
Friend’s proposal, I have some reservations about including
another offence in the schedule, given that the Government have made no
concessions in relation to the operation of the
orders.
Mr.
Hogg:
The way to resolve the matter is to vote against
schedule 1 stand
part.
Nick
Herbert:
I am grateful to my right hon. and learned
Friend, but that strikes me as going dangerously down the line of John
Kerry and his explanation of why he votes for things before he votes
against them. It is not surprising that this puts us in something of a
dilemma because, on one hand, there is a harm that we want dealt with,
which is why we raised the problem initially. On the other hand, we
have serious concerns, which we set out this morning, about the
operation of the orders, and the Government have not felt able to make
any concessions. Nevertheless, if there is to be a schedule, it would
be sensible to include the specific harm in it and within the
definition of serious crimes, rather than leaving it to a court to
decide whether it is a serious crime under the provisions that we
unsuccessfully objected to a few moments
ago.
I know that the
Minister was trying to be helpful in tabling the amendment, and I am
grateful for that. I know that the industry will be grateful. It has
found itself in precisely the same position as us—it expressed
concern about the operation of serious crime prevention orders and
argued strongly that there should be prosecution when possible. I
referred this morning to its concerns about the orders, but it wants a
widening of the offences if the orders must go forward. On that basis,
I would be happy not to press my amendment.
Mr.
Coaker:
I assure the hon. Gentleman that he did not sound
churlish, and I understand the point that he is making. While not
conceding on the principle of the Bill, I accept his point about trying
to improve it, and I hope that I have tried to take account of points
that are made and not only during our discussions of this Bill. That
applies particularly when there is a consensus that a Bill can be
improved. To reassure the hon. Gentleman, I should say that I did not
find his remarks churlish at all. I am pleased that we have been able
to add something to the Bill which his noble Friend wanted to be
added.
Amendment
agreed to.
Mr.
Coaker:
I beg to move amendment No. 25, in
schedule 1, page 48, line 27, leave
out ‘either’ and insert
‘any’.
The
Chairman:
With this it will be convenient to discuss
Government amendments Nos. 26 to 28 and Government amendments Nos. 30
to
33.
Mr.
Coaker:
We have already discussed the reasons behind and
structure for the schedule. The Government amendments relate to two
areas in which we think the orders should be available. Amendments Nos.
25, 26, 30 and 31 add the offence of acquisition, use and possession of
criminal property under section 329 of the Proceeds of Crime Act 2002.
That offence is considered to be one committed by organised criminals.
It can attract a financial reporting order under the Serious Organised
Crime and Police Act 2005. Amendments Nos. 27 and 32 add the offence of
false accounting. Finally, we tabled amendmentsNos. 28 and 33
because of the growing evidence that serious criminals are targeting
the tax system in an increasingly systematic and large-scale manner.
There is a direct impact from serious crime on the Exchequer in respect
of indirect taxes and excise duties; several billion pounds are lost to
the Exchequer through VAT and excise fraud. There is also evidence that
criminals are attacking the tax credit system and evidence of
systematic attacks by organised criminal gangs. The measures can
provide a useful means of preventing the harm caused by such
crimes.
Dan
Rogerson (North Cornwall) (LD): I welcome you to the
Chair, Mr. Benton. I share the delight of other Members at
serving under your chairmanship, and thank you for calling me to
speak.
I seek
reassurance from the Minister about tax credits, the issue that he has
just raised. All hon. Members will have had huge postbags of letters
from constituents who have had issues with the complexity of the tax
credit system and felt that they have been wrongly accused of trying to
defraud—through overpayment, or whatever. Many will be concerned
at the failings of the system’s complexity.
The provisions of this Bill may
be applied to someone who has been accused of or investigated for some
offence; is it the Government’s intention that those provisions
should be confined to people who were offending in a systematic way
against that system? There are those who have had a one-off individual
issue with the system and may have been found, officially, to have
committed fraud. That finding, however, may well have resulted from
some inaccuracy in the form
filling.
Mr.
Coaker:
The hon. Gentleman makes an important point;
clearly, we are not necessarily seeking to attack particular
individuals. The issue is about serious crime and systematic fraud. I
hope that I have reassured the hon. Gentleman. We are not after those
who have inadvertently misclaimed something; we want to prevent crime
in the future and tackle systematic fraud.
Amendment agreed
to.
Amendments made: No. 26,
in schedule 1, page 48, line 31, at end
insert—
‘(c) section 329
(acquisition, use and possession of criminal
property).’.
No.
27, in
schedule 1, page 48, line 33, at
beginning insert—
‘() An
offence under section 17 of the Theft Act 1968 (c. 60) (false
accounting).’.
No.
28, in
schedule 1, page 48, line 42, at
end
insert—
‘Offences
in relation to public revenue
6A (1)
An offence under section 170 of the Customs and Excise Management Act
1979 (c. 2) (fraudulent evasion of duty etc.) so far as not
falling within paragraph 1(2)(c) or 3(1)(b)
above.
(2) An offence under
section 72 of the Value Added Tax Act 1994 (c. 23) (fraudulent
evasion of VAT etc.).
(3) An
offence under section 144 of the Finance Act 2000 (c. 17)
(fraudulent evasion of income
tax).
(4) An offence under
section 35 of the Tax Credits Act 2002 (c. 21) (tax credit
fraud).
(5) An offence at
common law of cheating in relation to the public
revenue.’.
No.
29, in
schedule 1, page 52, line 2, at
end
insert—
‘Armed
robbery etc.
18A (1) An offence under
section 8(1) of the Theft Act (Northern Ireland) 1969 (c. 16 (N.I.))
(robbery) where the use or threat of force involves a firearm, an
imitation firearm or an offensive
weapon.
(2) An offence at
common law of an assault with intent to rob where the assault involves
a firearm, imitation firearm or an offensive
weapon.
(3) In this
paragraph—
“firearm”
and “imitation firearm” have the meaning given by Article
2(2) of the Firearms (Northern Ireland) Order 2004 (S.I. 2004/702
(N.I.3));
“offensive
weapon” means any weapon to which section 141 of the Criminal
Justice Act 1988 (c. 33) (offensive weapons)
applies.’.
No.
30, in
schedule 1, page 52, line 4, leave
out ‘either’ and insert
‘any’.
No.
31, in
schedule 1, page 52, line 8, at
end insert—
‘(c) section 329
(acquisition, use and possession of criminal
property).’.
No.
32, in
schedule 1, page 52, line 10, at
beginning insert—
‘() An
offence under section 17 of the Theft Act (Northern Ireland) 1969 (c.
16 (N.I.)) (false
accounting).’.
No.
33, in
schedule 1, page 52, line 19, at
end insert—
‘Offences in relation to public
revenue
20A (1) An offence under
section 170 of the Customs and Excise Management Act 1979 (c. 2)
(fraudulent evasion of duty etc.) so far as not falling within
paragraph 15(2)(c) or 17(1)(b)
above.
(2) An offence under
section 72 of the Value Added Tax Act 1994 (c. 23) (fraudulent
evasion of VAT etc.).
(3) An
offence under section 144 of the Finance Act 2000 (c. 17)
(fraudulent evasion of income
tax).
(4) An offence under
section 35 of the Tax Credits Act 2002 (c. 21) (tax credit
fraud).
(5) An offence at
common law of cheating in relation to the public
revenue.’.—[Mr.
Coaker.]
Question
proposed, That this schedule, as amended, be the First schedule to
the Bill.
The
Chairman:
With this we may take amendment No. 95, in
clause 5, page 5, line 20, leave
outsubsection
(4).
Mr.
Hogg:
The object of amendment No. 95, which stands
in my name, is to remove subsection (4) of clause 5, which gives the
Secretary of State, by order, the power to amend schedule 1. By that
power he can either add to or delete from the list of offences that are
categorised in the schedule.
I am very much against that
because the powers are exercised by affirmative
resolution—
The
Chairman:
Order. I am sorry to interrupt the right hon.
and learned Gentleman, but the noise level is getting rather high;
there are too many social conversations going on. I ask hon. Members to
speak sotto
voce.
Mr.
Hogg:
As you know, Mr. Benton, the affirmative
resolution procedure is not amendable. Therefore, we are enabling the
Secretary of State to add to these offences by way of an unamendable
order, which is a very unattractive proposition. For that reason, I
hope that the Committee will rally behind amendmentNo.
95.
The more general
issue is whether schedule 1 should stand part of the Bill. I shall be
brief, as I have rehearsed my arguments many times. The Committee by
now will understand that I take a strong objection to this part of the
Bill. I am very much against the definition of a serious
offence—I use the language of the Bill—by reference to
categorisation. I have expressed my reasons already; it is wrong in
principle and if we are to have serious crime prevention orders they
should be made by reference to the penalties imposed by the courts
rather than by categorisation.
My objection is to the whole
architecture of the Bill as set out in schedule 1, which is reinforced
by the fact that in respect of facilitation, the facilitator may be
committing no offences known to the law but will be caught if he or she
is facilitating an act that is specified in the schedule, which may be
pretty trivial.
I do
not like procedures being carried out, therefore my argument against
schedule 1 relates to the whole structure of the Bill. I would like to
think that in a spirit of collegiate support my Front Bench will take
the same view, but if they do not I shall, in any event, vote against
them.
5.30
pm
Nick
Herbert:
I rise, in the spirit of collegiate support, to
support my right hon. and learned Friend in relation to amendment No.
95, in which he seeks to remove the provision in clause 5(4) that
enables the Secretary of State by order to amend schedule 1, either by
taking offences away or, more seriously, by adding
them.
I signalled on
Second Reading that the official Opposition were unhappy with the
provision. It seems wrong in principle, even if the statutory
instrumentis subject to the affirmative procedure, that the
Government should take the power to add to the list of
offences that can be used to make serious crime prevention orders. We
have expressed concerns about
that. If it is
necessary to add offences to the legislation in the future, it should
be done by primary legislation. After all, plenty of Home Office Bills
are likely to come forward as vehicles for such amendments. Judging by
the number of Home Office Bills we have had so far, there will be no
shortage of legislative opportunities. The nature and scope of the
orders mean that, for consistency’s sake, given our concerns
about the operation of the powers, we cannot support granting an
open-ended power to the Government of the day to add to the list of
offences.
As to the
wider schedule, I am inclined to agree with my right hon. and learned
Friend. After all, we objected to clauses 1 and 2 in the first place
because the Government have failed to meet our concerns about the
operation of the
orders.
An issue for
us is that if the schedule of specific offences were to disappear, it
would leave in the Bill only the power for courts to determine whether
offences were sufficiently serious. Nevertheless, I am content to
oppose the schedule on the basis that we oppose that power as well.
Therefore, for consistency’s sake, in spite of the addition of
the offence of armed robbery that was proposed in the other place, we
shall oppose the
schedule.
Mr.
Coaker:
That is why I prefaced my remarks on the previous
group of amendments by saying that I knew that the hon. Gentleman was
not being churlish. I slightly suspected that he would ask his
colleagues to vote against the schedule even though we had included
armed robbery. I understand that he is not being churlish, even though
we agreed to the earlier
amendment.
As the hon.
Gentleman said, amendment No. 95 would remove the order-making power of
the Secretary of State to add to the list in the schedule. I have
already outlined the reasons why the schedule is important, not least
in providing guidance for the courts in exercising their discretion.
The order-making power is necessary to ensure that the list is kept
current, and to provide the most effective tool for the courts. Even
five to 10 years ago, we probably could not have anticipated the impact
that the use of computers would have in enabling serious targeting of
the Exchequer, which occasioned the amendments in the last group. We
need to be able to adapt to emerging trends in crime and the rapid
diversification of criminal activity that I alluded to earlier. That is
why the order-making power is
necessary.
Mr.
Blunt:
Just for my elucidation, could the Minister explain
the process that his Department went through in deciding the make-up of
the
schedule?
Mr.
Coaker:
As the hon. Gentleman knows, we went to
consultation. We spoke to stakeholders and the police, which is one of
the reasons why we included environmental crime in schedule 1. ACPO
told us that it should be included. We spoke to many different people.
The amendments that we just accepted indicate that we even took advice
from Conservative Lords as to
what should be in the schedule. A broad church of people have been
involved in deciding what should be included. I thank the hon.
Gentleman for giving me the opportunity to make that interesting
point.
We have already
discussed the context for the schedule in relation to clause 2(2),
which sets out what constitutes a serious offence. This includes the
necessity of providing the courts with the discretion to treat an
offence as if it were specified in schedule 1. The schedule therefore
provides not only a list of offences that will always be capable of
attracting an order, but guidance to the courts on the types of offence
that could form the basis of an
order.
The schedule is
based on schedule 2 to the Proceeds of Crime Act 2002. That set out
what constituted lifestyle offences for the purposes of that
legislation—offences that are committed by serious criminals to
fund and maintain luxurious lifestyles at the expense of their victims.
All these offences should be capable of attracting an order. However,
the purposes of the Bill go further than those of the 2002 Act, so we
thought it necessary to see whether it was appropriate, through this
legislation, to prevent the harm caused by serious criminals in
relation to other offences. As a result, we added certain categories of
offence to this schedule. Those include the environmental offences that
I mentioned earlier, along with offences relating to fraud, and
corruption and
bribery.
Mr.
Browne:
On the point about the Home Secretary being able
to add extra categories, how would the Minister answer a constituent of
mine who approached me to express concern that at some future point, a
less benign and enlightened Home Secretary than the one who exists
until this time tomorrow may seek to impose, through this provision,
various draconian measures that would pose a great threat to the
liberties of the citizens of this country? Indeed, they would apply to
people who had committed no criminal offence whatever. Is that not, in
the eyes of many people in this country, the slippery slope towards
imposing by order a set of measures that would potentially severely
curtail our
liberties?
Mr.
Coaker:
I would say to the hon. Gentleman’s
constituent what I would say to my own. Whatever the Home Secretary
decides should be able to be included in the schedule, it is not the
Home Secretary who will decide whether someone should be subject to a
serious crime prevention order. A High Court judge will take that
decision. I would also say to the hon. Gentleman’s constituent,
as I have said to a number of hon. Gentlemen in Committee and to my
hon. Friends, that the High Court is, for the purposes of the Human
Rights Act 1998, a public authority. Therefore, the High Court is bound
to act in a way that is consistent with human rights legislation.
Should a judge in that Court err, as I said to the right hon. and
learned Member for Sleaford and North Hykeham earlier, there is an
appeal process.
It is
an important part of our democracy—an important part of our
constitution—that we have a Parliament that makes the law. We
have a part of our democracy that sets down what we believe to be right
and proper, but it is a matter for the courts to protect certain
freedoms of individuals, to protect the civil
liberties of individuals and to apply the law. That would be a perfectly
reasonable response to reassure the constituent of the hon. Member for
Taunton.
Kali
Mountford:
What would my hon. Friend say to a constituent
of mine who said to me, “What are the Government doing, allowing
criminals to develop their crime in the face of new technology and not
being prepared to act against
that?”?
Mr.
Coaker:
I would say to my hon. Friend’s constituent
that that is why the Bill is before Parliament. Serious crime
prevention orders are part of a range of measures that the Government
are taking to tackle not only antisocial behaviour, but serious crime
that causes much harm to my hon. Friend’s constituents, as it
does to
mine.
Mr.
Coaker:
Let me just develop the point. It is interesting
and it pervades the entire debate that we are having on the Bill. There
is always debate, discussion and disagreement about where the line is
drawn between individual liberty and public protection. The interface
between those two concepts is always a subject of tension and debate. I
do not believe that there are many Committee members who do not
sometimes have people coming to them to ask exactly the question that
my hon. Friend set out. That question is not about the civil liberties
of criminals or of people who might, under the provisions of the Bill,
be the subject of serious crime preventions orders. The question is:
“What about my civil liberties, and what about the fact that I
see things happening in my community that I want to have
tackled?”
We
understand that there is a range of options. Of course, prosecution is
appropriate in the majority of cases, but the Bill is about civil
orders that will prevent crime. My hon. Friend’s constituents,
and mine, are as concerned about their own civil liberties and human
rights as about those of
others.
Mr.
Browne:
I understand the point that the Minister is
making. However, I differ from the views of the hon. Member for Colne
Valley in relation to the assumption that the state will always have
benign intentions—in every circumstance, and for ever more. Is
the Minister wholly and 100 per cent. satisfied that, if the British
National party won an overall majority in a general election and sought
to make it a serious offence, for example, for people to have sexual
relations with people of different ethnicity, that party would not be
aided in their attempt to introduce such a measure by what we are being
asked to vote
for?
Mr.
Coaker:
I just do not see that analogy at
all.
Mr.
Coaker:
I cannot see that happening. The hon. Gentleman
throws his hands up, but at the end of the day the judge in the High
Court will have to act proportionately and in accordance with the Human
Rights Act. In those circumstances, I cannot imagine
the sort of scenario that the hon. Gentleman painted. I have more
confidence in the High Court judges and the judicial process of this
country than that.
The
law on fraud is now set in the Fraud Act 2006. Many frauds are serious
and organised, and serious criminals might also commit fraud as a way
to finance their other criminal activities, which is why offences of
fraud are included in the Bill. The inclusion of bribery
and corruption offences demonstrates the
Government’s commitment rigorously to enforce laws and sanctions
against international bribery and corruption, and the schedule reflects
the breadth of operation of serious criminals in this
country.
It would be
impossible to list every type of crime that serious criminals could
commit in order to take advantage of people in the rest of society. I
therefore hope that the Committee will resist the amendment and support
the inclusion of the
schedule.
Question
put, That schedule 1, as amended, be the first schedule to the
Bill:—
The
Committee divided: Ayes 9, Noes
7.
Division
No.
9
]
Question
accordingly agreed to.
Schedule 1
, as
amended,
agreed
to.
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