Serious Crime Bill [HL]

moved Amendment No. 76: 76: After Clause 16 , insert the following new Clause— ““Obligation to vary or discharge order (1) The relevant applicant authority shall apply to the High Court in England and Wales to discharge a serious crime prevention order if there has been a change of circumstances which means that the order is no longer necessary to protect the public by preventing, restricting or disrupting involvement, by the person who is subject to the order, in serious crime in England and Wales. (2) The relevant applicant authority shall apply to the High Court in England and Wales to vary a serious crime prevention order if there has been a change of circumstances which means that the restrictions, prohibitions or obligations on the order are no longer necessary to protect the public by preventing, restricting or disrupting involvement, by the person who is subject to the order, in serious crime in England and Wales. (3) The relevant applicant authority shall apply to the High Court in Northern Ireland to discharge a serious crime prevention order if there has been a change of circumstances which means that the order is no longer necessary to protect the public by preventing, restricting or disrupting involvement, by the person who is subject to the order, in serious crime in Northern Ireland. (4) The relevant applicant authority shall apply to the High Court in Northern Ireland to vary a serious crime prevention order if there has been a change of circumstances which means that the restrictions, prohibitions or obligations on the order are no longer necessary to protect the public by preventing, restricting or disrupting involvement, by the person who is subject to the order, in serious crime in Northern Ireland.”” The noble Lord said: As a prelude, I shall refer to the discussion that we had on the evening before our first sitting in Committee, on 6 March. I put on record in our debate on 7 March how grateful I was to the Minister for organising that briefing. I wondered whether between Committee and Report she would consider reconvening the meeting to discuss one or two issues of tension with the individuals who came with her last time. She seems to be nodding and I am grateful to her. The amendment has been suggested to us by Liberty. It would require the relevant prosecuting authority to apply to the High Court for the variation or termination of the order if a change of circumstances, "““means that the order in its current form is no longer necessary to protect the public by preventing, restricting or disrupting involvement ... in serious crime.””" The Government have placed great emphasis on the fact that serious crime prevention orders would be made by the High Court rather than, as in the case of anti-social behaviour orders, lower courts or, in the case of control orders, the Home Secretary. It is argued that that would protect against inappropriate use of SCPOs. However, there are several major problems with that argument. As we have discussed, regardless of the quality of its judges, the court can only work within the boundaries set in laws passed by Parliament. It cannot transform unfair and unjust laws that may not be compliant. This amendment deals with a more practical, although important, weakness of the system which the involvement of the High Court would not remedy. The High Courtcan consider only the necessity of an SCPO and the proportionality of the obligations and restrictions it imposes when a case is brought before it, for example when the application for the order is initially made or when a person applies to vary or discharge the order. The High Court could not reasonably be expected to monitor the SCPO for the duration of its existence in order to ensure that the conditions it imposes remain justified and proportionate. This would mean that if a change of circumstances made the order unnecessary or rendered its terms unjustified or disproportionate, the order would nevertheless remain in force with the same restrictions or obligations. As the maximum duration of an order is five years, such changes of circumstance are likely. In the context of control orders, the noble Lord, Lord Carlile, has stressed the need for regular review to ensure that the order imposed remains proportionate. His first report was as independent reviewer, pursuant to Section 14(3) of the Prevention of Terrorism Act. At paragraph 45 of the review, which was published on 2 February 2006, he stated: "““The key to the obligations is proportionality. In each case they must be proportional to the risk to national security presented by the controlee. The minimum obligations consistent with public safety are the only acceptable basis for control orders … Last year I recommended the establishment of a Home Office led procedure whereby officials and representatives of the control authorities meet regularly to monitor each case, with a view to advising on a continuing basis as to the necessity of the obligations imposed on each controlee””." In the Bill, as in the context of control orders, there is a restrictive power for the person subject to an order to apply for the order to be discharged or varied. This is, we contend, insufficient. Where the state imposes restrictions on a person’s rights and freedoms, the state should ensure that these are justified and proportionate. It should not be left to the individual in question to demonstrate that the restrictions are no longer justified or proportionate. The amendment would require the prosecuting authority to apply to the court for the variation or discharge of an order where there has been a change of circumstances. A practical problem with relying on the person subject to an order to apply for its variation or discharge is that he or she will not always know when there is a change of circumstance. The prosecuting body may have access to intelligence or evidence showing a change of circumstance, but this may well not have been disclosed. Let us assume, for example, that a bank was subject to an SCPO because it was believed to be facilitating the financing of terrorist groups overseas. That group may have been broken up by an overseas law enforcement agency without the knowledge of the bank, meaning that the SCPO is no longer necessary. In such a case, the individual should not be expected to apply for the order to be discharged. I beg to move.