Serious Crime Bill [HL]

My Lords, the Government clearly have a duty to protect the British public from those who do their utmost to encourage serious organised crime and to profit from it, while taking great care to stay at arm’s length from the crimes themselves. They are a danger to all of us, but their hands never appear dirty in public. I recognise that it is very difficult to take measures to protect the public from such people, but it is vital that we do so. However, those methods must be both proportionate and effective without undermining our system of law and justice. If the new system does not work, it is the ““Mr Big””s who will have the last laugh—again. Today we have before us the supreme irony of a Bill that creates a cross between ASBOs and control orders, at the very time when the effectiveness of both measures has come in for so much criticism. Control orders have been dogged with problems. Just last month a third terrorist suspect went on the run. That must raise serious doubts about the effectiveness of introducing a similar scheme for gangsters; and if up to 55 per cent of tearaways breach ASBOs, what makes the Home Secretary think that hardened, calculating criminals of the most dangerous kind will pay attention to one? We are sceptical about whether measures such as the new serious crime prevention orders are the most effective way of combating serious crime. Less than two years after the Serious Organised Crime and Police Act 2005 was enacted, the Government would be well advised to answer our call to improve criminal evidence rules first; for example, by allowing evidence obtained through the use of phone tapping and other electronic surveillance to be admissible in court, so that more serious criminals can be charged and convicted. After all, the best weapon against serious criminals is to track them down, charge them and prosecute them. However, the Home Office appears to be in denial, or, according to the Home Secretary last month, in wallpaper-stripping mode. He seems to see himself as Bob the Builder. In reality, he looks as though he is auditioning for the BBC’s ““DIY SOS””. However, we must consider the Bill before us seriously. Of course it is right to do everything within reason to prosecute and punish those guilty of serious crime. However, Part 1 gives sweeping powers to judges to impose super-ASBOs—which, I understand, the Home Office is colloquially calling ““GASBOS””—on the basis of the civil burden of proof, the balance of probabilities. We shall need to examine the potential consequences of that. The Minister sought to reassure us today by saying that there would be a sliding scale of testing against the balance of probabilities, but in court and in the statute one wants clarity. How easy will it be to apply for an order to be made? The Explanatory Notes state that there will be tight control over the process by the DPP, but Schedule 2(2)(1) does not seem to provide that. We shall consider whether that needs tightening up, because, despite what the noble Baroness said, there remains widespread concern that it could prove too tempting for the police to go for an order instead of bringing a prosecution in the criminal court, where perhaps they may think they have an underwhelming case. The noble Baroness said that that was not the intent. We will have to ensure in our scrutiny of the Bill that her assurance becomes a reality. We shall need to examine whether there is sufficient protection in the Bill for those engaged in legitimate business, whether the prohibitions proposed by the orders are likely to be appropriate and effective, and what the costs may be. I am puzzled by the Government’s definition of ““serious crime”” in Schedule 1. Why have they listed fishing for salmon with a prohibited instrument as a serious crime but left off something as serious as armed robbery? What is the rationale for that? Is it right that the list of serious crimes can be extended any day in court by a judge? Surely transparency and legal certainty are best served by extending the list of serious crimes by statutory instrument following parliamentary scrutiny. Super-ASBOs have grabbed the headlines, such as there have been in the press, but we must not ignore the important provisions of Parts 2 and 3 in our scrutiny of the Bill. As the noble Baroness said, Part 2 is based firmly and squarely on work done by the Law Commission. I join her in commending the commission, as I always do, on its excellent work on these matters. In Committee, we should simply like to examine how the Government’s proposals diverge from the original Law Commission proposals so that the Government have the opportunity to put on the record how their thinking developed. Certainly, at first blush it appeared from the Bill that the Government had taken the more appropriate and reasonable of those proposals and that they were leaving until a later date those that might need more testing in pilot schemes or more research. However, we will need to look at that in some detail. I turn to Part 3. Of course it is important that we should make the best use of modern data systems to detect and prevent fraud. As the Minister said, it is what the public expect and have a right to expect, but the methods adopted must be not only effective but proportionate. The Audit Commission’s National Fraud Initiative has been a valuable exercise, but in Part 3 we see sweeping changes to our data protection laws that will need very careful consideration. Extensive powers are being seized by the Home Secretary that could allow, for the first time, widespread data-sharing between the public and private sectors in the name of tackling fraud. It will overturn the basic data protection principle that personal information provided to a government department for one purpose should not, in general, be used for another. Instead, the principle will now be that information will normally be shared in the public sector provided that it is in the public interest. The Bill clears the way for data-matching exercises to be carried out on a large scale, even though a Home Office consultation paper last year acknowledged that many public bodies feared that such operations could be seen as fishing expeditions, which should be justified only on a crime-by-crime basis. But, of course, the Bill could open the way for operations under which software was used to search several databases to identify suspicious patterns of activity that simply could not be spotted when the data were seen individually. Today the Minister assures us that this is intended to be a narrow gateway, very carefully policed and underwritten by guarantees. We shall need to examine that assurance to see whether it is borne out by the reality of the drafting. For example, I am concerned about new Section 32G under Schedule 6, which gives the Home Secretary the power to add to the purposes for which data-matching exercises can be carried out. Presumably, in the future that could include sensitive personal data, so I should like to look at that fairly closely in Committee. The Explanatory Notes make it clear that, in the longer term, the National Fraud Initiative, in which 1,300 public bodies take part, will be extended to include information on central government systems, such as passports and driving licences. It has been suggested by some respondents on the Bill that it would not be the right way forward if that power were used to pave the way for a national identity register. It would certainly appear to contravene the assurances given to this House during the passage of the Identity Cards Bill. We need to look carefully at Part 3, but of course I understand that we will need to ensure that the appropriate codes of practice and guidelines are in place. The noble Baroness said today, ““Don’t worry. The Data Protection Act covers everything””, but the advice I have been given is that, although some of the new measures must comply with existing data protection codes of practice, some of the new powers are not subject to specific codes or guidelines, and I shall need to look at that. The noble Baroness shakes her head but we will need clarification on that point in Committee. The Minister talked about the part of the Bill whereby the Assets Recovery Agency has its demise. It has now merged with the Serious Organised Crime Agency, which could be a measure of common sense. However, it is important that the costs of recovering assets, together with the amount recovered, are still published. It is a matter of public knowledge; we need it in the public domain. We must monitor the effectiveness of the process. The ARA has gone after small, more readily accessible amounts; at least its procedures were relatively transparent. What will be the impact of the transfer to SOCA, whose approach one might call quasi-secret? What accountability will there be to Parliament? SOCA has repeatedly made it clear that it quite properly, according to its rationale, concentrates on level 3 crime: organised gangs operating nationally and across borders. There are fears that the merger could mean a narrowing of focus. My noble friend Lord Glentoran will table an amendment in Committee to debate the particular and significant concerns raised with us by the Police Service of Northern Ireland; I understand that it has approached other noble Lords on the same matter. It is worried that there will be a reduction in the focus on Northern Ireland, with a risk, for example, that the intimidation of neighbourhoods and persistence of protection rackets in sectors of the local economy will simply not appear high enough on any scale of SOCA priorities set in London. I am the first to recognise that, in general, SOCA’s more intelligence-led approach could offer a solid fit with asset recovery. SOCA has made it clear that it wants the hunt for criminal profits to be central to how it operates. That can only be good news. What we need from this merger is synergy, not a culture clash. In conclusion, it is obvious that serious organised crime causes human misery and massive costs to society. There is nothing between all of us on that. The principles to be debated in this Bill are significant. Do they take us too far in the development of preventative orders and data-sharing? Are they necessary in the fight against serious organised crime or are there other, more effective, measures that we should be adopting? All those matters deserve cautious and careful consideration, and we look forward to giving them that attention in what I am sure will be a rather intriguing Committee.