Serious Crime Bill [HL]

I thank the noble Lord, Lord Henley, for setting out the reasons for his amendment; this is a probing amendment, so I shall go through this matter step by step in the hope that noble Lords can better understand the Government’s intention and in the hope that we do not have to return to it at a later stage. The Bill as drafted provides significant safeguards and protections, especially in relation to ensuring that third parties are not unreasonably affected by the terms of an order. That is the kernel of what the noble Lords, Lord Henley and Lord Thomas of Gresford, are asking in relation to why ““significantly”” is used. We hope that some third parties will be disadvantaged by these orders, and I am confident that they will make life significantly harder for criminal associates who would normally work to commit serious crimes with or for the subject of an order—and for that we make no apology, because that is the whole purpose. However, regarding the other ramifications, it is possible that the proposed terms of an order or the terms of an order already in place will have knock-on consequences for individuals who are not involved in serious crime. It is vital that those circumstances are taken into account by the court when considering whether to impose, vary or discharge an order. As a consequence, Clause 9 allows third parties to make representations to the court in hearings concerning the making, variation or discharge of an order. Clauses 17 and 18 allow third parties, in certain circumstances, to make applications for the variation or discharge of an order. However, we need to set limits on the rights of third parties, so that the proceedings are not tied up with spurious or frivolous applications. The court should be obliged to hear from only those who genuinely need to be heard. It will be the court that makes the decision as to whether the third party is or is not significantly affected. As a result, Clause 9 sets out that a third party must be likely to be significantly adversely affected by the court’s decision before being allowed to make representations. The courts will be able to make a reasoned decision as to whether an adverse effect is significant on the basis of the application by the third party. Clause 17 sets out that a third party can apply for variation only if a three-part test is met. First, the third party must be significantly adversely affected by the order. Secondly, one of two conditions must be met: either the third party made representationsat an earlier hearing, or an application in earlier proceedings other than under Clause 9, and there has been a change of circumstances affecting the order;or the third party has not appeared in earlier proceedings but he can show that this was reasonable in all the circumstances. Thirdly, the third party must not be applying to make the order more onerous. That test is a very important safeguard and sieve. Clause 18 allows a third party to apply for discharge of the order. The test is the same as in Clause 17 but the final limb does not apply because it is not relevant. The amendments would change the test inClauses 9, 17 and 18 to ““adverse effect”” rather than ““significant adverse effect””. The threshold formaking an application or being allowed to make representations would, therefore, be lower. We think that the current level in the Bill is the one at which the threshold should be set. If the threshold is set any lower, the court is liable to be overwhelmed with representations or applications; if it is set any higher, the court will not hear from those who have a genuine interest in the outcome of the hearing or those who should be in a position to make applications. It would not be sensible to allow people who have been negatively affected only in a very minor way to make such representations or applications to the court. For example, an order which required an individual to disclose financial information might have the side effect of stopping him from gambling with the money he had made through exploiting others. That would have a negative effect on his local bookmaker. However, I think we can all agree that that is an insignificant sort of negative effect, and it should not mean that the bookmaker could make representations or applications to the court. In addition, there will be provision in the application process for the making of an order set out in the Civil Procedure Rules—something to which the noble Lord, Lord Henley, alluded—requiring the applicant authority to bring the potential impact of the proposed terms of an order on third parties to the court’s attention. Together, these measures will ensure that the courts have the right information in front of them to enable the right decision to be made on what terms of an order would be reasonable and proportionate and on whether variation or discharge was appropriate. We believe that, as a whole, the Bill successfully balances the need to make the orders effective with the requirement to ensure that the rights of third parties are protected. On that basis, we resist the amendments.