Clause
35
Proceedings
in the Crown
Court
5.30
pm
Mr.
Coaker:
I beg to move amendment No. 50, in
clause 35, page 23, line 9, leave
out subsections (4) and (5) and
insert—
‘(4) The Crown
Court, when exercising its jurisdiction in England and Wales under this
Part, is a criminal court for the purposes of Part 7 of the Courts Act
2003 (c. 39) (procedure rules and practice
directions).’.
I
apologise to the Committee for having to amend the Bill to clarify
which rules committee should make procedure rules in relation to the
operation of orders in the Crown court. After further consultation
within Government, we have concluded that it would more
administratively convenient for the procedure rules in relation to
orders made in the Crown court to be made under the provisions of the
Courts Act 2003, as that is where the rules in relation to other civil
orders on conviction will be made.
James
Brokenshire:
In the context of the previous debate, I rise
to highlight the strange irony that the amendment should say that the
Crown court is to be termed a criminal court for the purposes of clause
35, notwithstanding the fact that we are apparently talking about civil
orders and a civil burden of proof. However, I note what the Minister
said about the operation of the orders, even if there is some irony in
the relation to the wording
proposed.
Amendment
agreed to.
Clause
35, as
amended,
ordered to stand part of the Bill.
Clause
36
ordered to stand part of the
Bill.
Schedule
2
Functions
of applicant authorities under Part
1
Mr.
Hogg:
I beg to move amendment No. 133, in
schedule 2, page 54, line 28, leave
out paragraph
2.
The
Chairman:
With this it will be convenient to discuss the
following amendments: No. 134, in
schedule 2, page 55, line 26, leave
out paragraph 7.
No.
135, in
schedule 2, page 56, line 17, leave
out paragraph 13.
No.
136, in
schedule 2, page 57, line 1, leave
out paragraph
17.
Mr.
Hogg:
Amendment No. 133 is not a minor amendment; it is, I
hope, an important amendment. We have been over the nature of the
orders many times—how wide ranging and draconian they are, the
limited protection given to the citizen, the fact that they are
renewable, and the rest of it. Some members of the Committee might have
taken comfort from the fact that under clause 9 an application can be
made by only a limited number of individuals—the Director of
Public Prosecutions, the Director of Revenue and Customs Prosecutions,
the director of the Serious Fraud Office and, in the case of Northern
Ireland, the Director of Public Prosecutions for Northern Ireland. On
the face of it, therefore, the central and important distinctions are
being made at a very high level of administration.
That is the comfort that some
members of the Committee might have taken from clause 9. However, I
wonder whether they should have drawn such comfort, because in schedule
2, under paragraphs 2(1) and 2(2), paragraphs 7(1) and 7(2) and
paragraph 17, the powers can in fact be delegated downwards to a
relatively low level. So far as the powers of the Director of Public
Prosecutions are concerned, paragraph 2(2) says:
“References...to the Director” can be deemed to
be
“references
to...any Crown
Prosecutor.”
Paragraph
7(2) says: “References...to the
Director”—that is, the Director of Revenue and Customs
Prosecutions—may be deemed to be
“references to...any Revenue
and Customs
Prosecutor.”
Similarly,
paragraph 17, which refers to Northern Ireland, says:
“References...to the Director” will
be
“references
to...any Public Prosecutor.”
The important point, which I
have made already, is this. If we give powers to an official, we can be
quite sure that those powers will from time to time be abused. When the
powers are set a level at which the powers in question have been set,
it is important that they should exercised at very high administrative
level. I am very far from happy—indeed, I am extremely
unhappy—that the powers to make applications that could lead to
such draconian consequences should be entrusted to officials of fairly
modest standing. That is not right.
That concern is reinforced by
the fact that the Minister has told us on several occasions that we
should expect only a limited number of applications to be
made—he said that the regulatory assessment had suggested 30
orders a year. We are dealing with four jurisdictions—Northern
Ireland, the Revenue, the DPP and the Serious Fraud Office. We are
talking about only four, five or 10 applications per director, so why
on earth can not it be confined to the director himself or herself,
rather than being entrusted to a relatively junior official.
I hope that the Committee will
reflect on those points and decide that applications of this kind,
which are serious in their potential consequences, should be confined
to senior officials, together with all the other consequential
decisions that are referred to in, for example, paragraph 1 of schedule
2.
Mr.
Coaker:
Either the Director of Public Prosecutions,
the Director of Revenue and Customs Prosecutions or the director of the
Serious Fraud Office must make the specific decision to delegate. It
will not happen automatically, as the right hon. and learned Gentleman
implied. It will be a positive
decision.
Schedule 2
sets out the functions of the applicant authorities in relation to part
1 of the Bill. The amendments all relate to the powers of the directors
of the four applicant authorities to delegate the exercise of their
functions in relation to serious crime prevention orders to members of
their respective organisations. Those powers have been included because
we want the Director of Public Prosecutions, the Director of Revenue
and Customs Prosecutions and the director of the Serious Fraud Office
to be required to make a decision to delegate to a member of their
staff rather than the delegation happening
automatically.
Mr.
Hogg:
Clause 9
states:
“A
serious crime prevention order may be made only on an
application”,
but the
effect of paragraphs 2(1) and (2) of schedule 2 is that the conduct of
applications can be delegatedto a Crown Prosecutor. In other
words, the Crown Prosecutor, in contrast with the director, has all the
consequential decisions to make, as he has the conduct of the
application.
Mr.
Coaker:
My point is that it would not be automatically
delegated—
Mr.
Hogg:
No, it is not automatic.
Mr.
Coaker:
But once delegated, those prosecutors would, to
all intents and purposes, be the applicant authority. I accept that
point. However, as well as being under the control of their own
directors, the right hon. and learned Gentleman will have noted that
paragraph 3 of schedule 2
states:
“The
functions of the Director under this Part are exercisable under the
superintendence of the Attorney
General.”
It is not only
that the director of the specific prosecution agency will ensure that
things are done properly; the Attorney-General also has a
responsibility.
If the
amendments were made, the directors would need to fall back on their
existing powers of delegation. In some cases a director might be left
without any power of delegation and in others delegation would happen
automatically. It would be impractical to ask the directors of each of
the three organisations to carry out those functions personally, even
for the relatively small number of orders that we anticipate. Instead,
those functions will be carried out by specifically and specially
trained members of their respective organisations, all under the
superintendence of the Attorney-General, as also specified in the
schedule.
Mr.
Blunt:
We had a discussion about the application of the
orders to prisoners who come out of prison having been sentenced for a
serious crime. Instead of there being 30 cases a year as under the
impact assessment, there could be 30,000. I imagine that that is the
sort of number of people leaving prison after being convicted of
serious crimes every year, so it would become an automatic part of the
process when the powers are delegated. Can the Minister say anything to
comfort me that the powers will be delegated only in a way that will
not lead to an automatic post-imprisonment process, and that a suitable
order is applied to everyone who leaves prison having been convicted of
a serious
crime?
Mr.
Coaker:
Obviously, only an appropriate order would be
allowed by the court. That would be part of the process. We came to the
number 30 as a result of an assessment of the number of orders that we
thought would be made in any one year. That was in the regulatory
impact assessment, and it is our best assessment of the number of
orders. We do not in any way expect there to be 30,000; the orders will
deal with very serious criminals and very serious crime.
The hon. Gentleman almost
seemed to suggest that a director might go willy-nilly for a serious
crime prevention order. I hope that he will find the comfort that he
seeks in the fact that that simply could not happen. A director doing
that would be not only subject to the normal processes within their own
agency, but under the superintendence of the
Attorney-General—who would be the governor, if you like, of the
prosecuting agencies. Before the issue got to court, the
Attorney-General would see that going willy-nilly for such an order was
not appropriate and reasonable. If someone seeking an inappropriate
serious crime prevention order got it to court, the court would simply
not allow it to be
made.
Dan
Rogerson (North Cornwall) (LD): The Minister has painted a
picture of the powers being included in the Bill for operational
reasons—in other words, they
would give various organisations the capacity to
function and the director would not have to have direct responsibility,
although they would ultimately take the
decision.
However, I
envisage a case in which the decision that such an order might be
desirable to the agency in question came from below—came to the
director, who then signed it back down to someone below. In other
words, we are increasing the capacity for the number of orders to
multiply, much as the hon. Member for Reigate
suggested.
Mr.
Coaker:
To clarify the position for the hon. Member for
Reigate, I should say that we estimated that there would be
approximately 30 cases. That estimate of need came from the various
branches of law enforcement. We believe that it is appropriate for the
director of the prosecuting agency to be able to delegate to a
specific, specially trained member of staff. However, such a staff
member will not simply be able to decide to apply for the order, just
because the issue has been delegated down. The decision would have to
be proportionate and reasonable—otherwise, the court would
simply not allow
it.
The position of
the Director of Public Prosecutions for Northern Ireland is slightly
different. The Bill does not give him a power of delegation; his powers
to delegate under section 36(1) of the Justice (Northern Ireland) Act
2002 will be relied on. Paragraph 17 to schedule 2 of the Bill makes
the position clear. I hope that, for the reasons that I have outlined,
the hon. Gentleman will withdraw his
amendment.
Mr.
Jeremy Browne (Taunton) (LD): This is the first time I
have spoken this afternoon, so I welcome you to the Chair,
Mr. Benton. If the right hon. and learned Member for
Sleaford and North Hykeham is minded to press the amendment to a
Division, we shall support him for the following reasons. There is
confusion in the Government about how many people will be affected
annually by the orders. The figure 30 keeps being presented. One could
say that a point of principle is involved, that the numbers are neither
here nor there and that one is either in favour of the principle or
not.
However, the
public will perceive that the number of people affected each year is
significant. The Minister seeks to reassure us that the orders are
reserved for the tiny number of real Mr. Bigs, the real
problem people; 30 is the figure that he keeps citing. However, when
Government Back Benchers make interventions, they always say,
“This Bill will go down extremely well in my constituency
because of all the people committing antisocial acts on various housing
estates.” They say how much they will appreciate the Bill.
However, there are 646 Members of Parliament, I think. On the basis of
30 a year, a person will be affected in each constituency only about
every two decades. The effect on those hon. Members’
constituencies will not be as profound as they seem to
think.
Chris
Ruane (Vale of Clwyd) (Lab)
rose—
Mr.
Browne:
If an 18-year-old is causing trouble, in, for
example, the constituency of the hon. Gentleman to whom I will give way
in a moment, if the Government
go through 30 cases a year, that 18-year-old will be knocking on 40 by
the time a serious crime prevention order is put in
place.
5.45
pm
Chris
Ruane:
Is the hon. Gentleman aware that the 30
super-criminals of whom we are talking spread their power, or
tentacles, over many constituencies and across whole cities,
communities and regions? It isnot just one bad person, or
super-gangster per constituency. The reach of such people is far and
wide, and often they reach into our communities—the poorer
communities—and Labour constituencies, which is why Labour
Members are
concerned.
Mr.
Browne:
I am grateful to the hon. Gentleman for making
that point, but if we are talking about such a small number of people,
he will have no difficulty in supporting the amendments. There is no
need to delegate the power to make a decision that is as infrequent as
this one will be—roughly 30 people a year. The concern is that
if we do not pass the amendments, there will be a machine somewhere
within Government signing the orders through on a regular
basis.
The hon.
Member for Reigate made a point about people who are released from
prison having orders imposed upon them as a matter of routine. We are
told that 30,000 is an excessive number and it will not be of that
order, but that 30 is a reasonable estimate. However, this is the same
Government who made an estimate about the number of Polish people
coming to work in the United
Kingdom.
Mr.
Coaker:
I will ignore the last remark. I say to the hon.
Gentleman that this is an extremely important point, about which I do
not want there to be any misconception. The Government do not sign
through serious crime prevention orders; it is the courts that do so.
Whatever else we have said in Committee and whatever disagreements
there have been, the courts will make the decision about whether a
serious crime prevention order should be made or
not.
Mr.
Browne:
I am grateful for that intervention. Of course the
courts will make the decision, but the application is made by an agency
of the Government and this is a Government Bill.
In conclusion, if Members think
that 30 is a realistic assessment of the numbers of people who will be
affected annually, it is perfectly reasonable that the decision is
taken at a higher level and that these amendments are supported on a
cross-party basis. If they are not, one must make the reasonable
assumption that the 30 figure will not apply in practice, if and when
the Bill becomes
law.
James
Brokenshire:
This interesting debate has highlighted
concern about the application of the orders and the way in which they
will be sought and operated. Conservative Members accept that there
must be an element of delegation by the authorities to makethe
system work appropriately, but that does not undermine the importance
of the concern that if the orders are as serious as the Minister has
suggested and
if they are only intended to be used in a limited set of circumstances,
we must ensure that there are clear lines of communication and that
clear steps would be taken to ensure that control was exercised and
decisions were made at an appropriate level. Doing so would denote the
seriousness of the orders that we are talking
about.
Mr.
Cox:
Does my hon. Friend accept that there is nothing in
the Bill that mentions super-criminals, there is nothing in the Bill
that says there will be only 30 applications and there is nothing in
the Bill that would necessarily or logically imply that the orders will
be applicable to only 30 people? [Interruption.] The Minister
smiles, but I have seen this happen before. Legislation is passed,
teams are set up in all the prosecuting departments and it becomes
self-generating. It will
be—
The
Chairman:
Order. I remind the Committee that the Minister
has already replied to the debate. The proper sequence should have been
for the hon. Member who spoke before to speak before that, but the
timing was not quite right. I do not want to repeat things, but the
Minister has already replied. It would be helpful if we could move
along and the mover of the amendment could indicate whether he will
withdraw it.
James
Brokenshire:
Thank you, Mr. Benton. I shall
take that advice. My parting comment, in the light of the intervention
by my hon. and learned Friend the Member for Torridge and West Devon,
is that there are clear reservations about the measures’ extent
and application. I urge the Minister to consider again whether some
greater comfort could be provided to make it clear that they are
intended to operate only in limited circumstances and address within
the Bill the concerns expressed about wide
discretion.
Mr.
Hogg:
Having listened to the debate, it seems to me that
there are merits on both sides. My hon. Friend the Member for
Hornchurch and indeed the Minister have made the point that it is
occasionally necessary to delegate. I understand that. A number of
applications will be made to the court in the course of any proceedings
that do not have to be made by the director in person and can probably
be sensibly delegated down. On the other hand, given the relatively
limited number of applications forecast by the Minister, a number of
policy decisions relating to any one application should properly be
made by the
director.
The problem
at the moment is that the director—I am referring simply to the
Director of Public Prosecutions, although this is relevant to all the
other enforcement agencies too—has complete discretion as to how
much delegation should occur. I should be much happier if it were made
plain in the Bill that only consequential actions should be delegated
down, and that primary actions should be retained and confined to the
directors in question.
It is not a total precedent,
but the Minister will remember telephone tapping warrants. In my day,
they were made in the Home Office by the Minister and not by officials.
That may have changed, but it has always been recognised that some
classes of order should be made exclusively at a very high level. I
would like to
think that he will revisit the matter to see whether we can construct a
clause that reflects
that. I have one other
point. The Minister draws comfort from the fact that the
director’s functions are exercisable under the superintendence
of the Attorney-General. I have never served as a Law Officer, but I
was a Minister for a long time, and I can tell him that no
Minister—for this purpose, I regard the Attorney-General as
one—will exercise close superintendence over how the powers are
used. It is possible that a discussion might take place at one stage
between the director and the Attorney-General about the
director’s general approach, but the idea that the
Attorney-General will supervise every substantial order-making power is
simply not
right.
Mr.
Coaker:
We have disagreed on a number of things. The right
hon. and learned Gentleman will have to press his amendment if he does
not accept this.I shall consider his point, but—to be
completely honest—without a commitment that anything will happen
on Report. If he wishes to withdraw his amendment on that basis, that
is fine. I cannot give him a firm commitment, but I will consider
it.
Mr.
Hogg:
I accept that the Minister will considerit
again. I recognise that he is not giving any commitments about the
outcome of his considerations, but on that basis, I beg to ask leave to
withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Schedule
2 agreed
to.
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