Serious Crime Bill [HL]

rose to move Amendment No. 32A, as an amendment to the Motion that this House do agree with the Commons in their Amendment No. 32, leave out ““agree”” and insert ““disagree””. The noble Lord said: My Lords, the Minister has been good enough to apologise for the late delivery of these amendments during the passage of the Bill. It started here and went through all its stages and then went to the House of Commons and went through all its stages, but the first intimation that we had of this clause, which the Minister described as a substantial innovation, was by a letter dated 15 October—a week last Monday—that was received the following day. That gave no time for any outside interests to consider the way in which they should respond to the Government’s amendment. We on these Benches say that it is quite unacceptable in principle that amendments should be delivered so late that debate becomes simply a brief discussion between Members of this House without outside involvement. This was thrust upon the Commons in such a way that it had no time to respond. Turning to the merits of the matter, the Minister referred to Professor Macrory and has put some store by his views as expressed in his report Regulatory Justice: Sanctioning in a post-Hampton world. Professor Macrory was concerned with the best way of regulating what goes wrong in business. He said: "““we need a far more flexible system of regulatory sanctions in this country–one that will provide better incentives for legitimate businesses to comply with regulations, and one that gives greater acknowledgement to the interests of victims. My vision for a system of regulatory sanctions will allow regulators to respond far more proportionately to the circumstances and facts of a particular breach.""““While giving regulators a wider range of sanctioning options to enforce regulatory compliance, the proposals also protect business from heavy handed implementation and enforcement””." Indeed, he insisted that the only cases that should be prosecuted are those where there is evidence of intent, knowledge, recklessness or gross negligence. Otherwise, the sanctions that should be imposed upon a business should be otherwise than through the criminal courts. How does the Bill respond to Macrory, bearing in mind that the amendment was produced only last week? The Bill introduces serious crime prevention orders. We have opposed them on principle because, like ASBOs, they require a civil standard of proof and permit hearsay evidence and civil procedures to be used for the making of the order. However, they apply not just to those who have been convicted of crime, but to those who facilitate the commission by another person of a serious offence. Clause 5 states that the court must ignore the intentions or any other aspect of the mental state at the time of the company or personality against whom an order is made. Similarly, an order can be made not only if a person facilitates the commission of a serious offence but also if he conducts himself in a way that is likely to facilitate the commission by himself or another person of a serious offence. Again, the court must ignore his intentions or any other aspect of his mental state at the time. So while Macrory in his report is saying that we should not use criminal prosecutions for businesses unless there is intent, recklessness, gross negligence or so on, the Bill introduces the concept of penal orders being made against people who do not really know what has happened. Provided that it can be proved on a balance of probabilities, with hearsay evidence, that they have conducted themselves in a way that is likely to facilitate a criminal offence, the order can be made. As I have said, it can be made against corporations, companies, partnerships and associations of one sort or another. Subsection (1) of the proposed new clause states: "““A serious crime prevention order against a body corporate, partnership or unincorporated association may authorise a law enforcement agency””—" such as the Serious Organised Crime Agency, the Director of Public Prosecutions or the police— "““to enter into arrangements with —""a specified person; or""(b) any person who falls within a specified description of persons;""to perform specified monitoring services or monitoring services of a specified description””." It does not attempt to say who the specified person is or to create a class of people who can be employed for these purposes, nor does it suggest what monitoring services or what description of monitoring services the authors of the amendment have in mind. However, the real sting in the tail is that if an order is made against a business which, as I have pointed out, does not require it to be party to a crime but merely to have facilitated it in some way, knowingly or unknowingly, the costs of the monitoring will fall on them. The proposed new clause in Amendment No. 33, which is to be taken with that proposed in Amendment No. 32, places no limitation on the costs. Therefore, at the very end of the parliamentary process, a Bill is introduced that imposes on a business, its partners and its principles a monitoring order and the payment of unspecified costs that may be incurred in its imposition. If we had had the opportunity to work through and amend the clause, and to consider the policy issues behind it, we might have arrived through the parliamentary process at an acceptable provision, but we find ourselves with a clause that imposes onerous and difficult provisions on the businesses concerned. That is quite contrary to Macrory. Although my learned friend quoted Macrory, he did not go to the principles that he represents and imposed on businesses these great burdens. I beg to move. Moved, as an amendment to the Motion that this House do agree with the Commons in their Amendment No. 32, leave out ““agree”” and insert ““disagree””—(Lord Thomas of Gresford.)