Serious Crime Bill [HL]

I begin my short intervention by saying how sorry I was not to be able to take part in the Second Reading debate on 7 February—a temporary disablement immobilised me. I read with admiration the speeches made on that occasion. I must resist the urge to make a Second Reading speech on this or any other amendment. It is a particularly powerful urge on this amendment because it relates to a provision that was properly described last time as ““authoritarian””. For the reasons touched on by the noble and learned Lord, Lord Lloyd of Berwick, it is an extremely important point indeed. The provision the amendment relates to infringes a fundamental principle of our liberty and therefore of our laws that protect our liberty. That principle is that we may not be subject to a punishment for committing some proscribed conduct unless the fundamental facts to that prosecution are established by reference to the criminal standard of proof—beyond reasonable doubt. That is fundamentally important, and it does not matter with what motive the lawmaker brings forward his legislation. The Minister at Second Reading said: ““Oh, but this is not a criminal matter; this is not a punishment; this is a civil order””. I find it very difficult to see how she thought she could sustain that because it is a provision that impinges very importantly and drastically on the liberty of the individual. It is not sufficient for the Government to say, ““You can see what our motive is: it is simply to protect the public from the commission of further crime””. A fairly topical example is that locking somebody up in Belmarsh without a charge can be said to be for the protection of the public. That does not make it any the less a penal intervention in his life and liberty, as the Government have found; nor does it make it any more a civil measure. These orders will apply on proof of proscribed conduct. All of that can be found in Clause 2(1)(a) to (c). Breaching the orders will attract a maximum punishment of five years’ imprisonment. These seem to me to be the hallmarks of a penal provision. If so, they should surely attract the criminal standard of proof. I very much hope that the noble Baroness will reflect further on this and return on Report, or perhaps even later today, to say that she has thought further and better about it.