Schedule 3 - Powers of interim receiver or administrator

Proceeds of Crime Bill – in a Public Bill Committee am 4:15 pm ar 13 Rhagfyr 2001.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs) 4:15, 13 Rhagfyr 2001

I beg to move amendment No. 358, in page 262, line 18, leave out subparagraph (2).

Schedule 3 defines the powers of the interim receiver or administrator. A number of points arise from that. Since I tabled the amendment, it is interesting that the Minister has tabled several amendments to schedule 3. That will have an impact on some of the amendments that I tabled, because some of the Government amendments go a long way toward meeting my anxieties. We can examine that as we continue.

The amendment would delete paragraph 2(2). Paragraph 1 provides that the administrator has the power to seize property to which the order applies. Paragraph 2 says:

''(1) Power to obtain information or to require a person to answer any question.

(2) A requirement imposed in the exercise of the power has effect in spite of any restriction on the disclosure of information (however imposed).''

That strikes me as rather a wide power. Rather than making a speech about that, I want the Minister to explain and justify its presence. The amendment is probing, and if he can reassure me about the sub-paragraph, I will be content for it to remain in the Bill. It rang alarm bells in my mind, and I want him to explain it.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

When an interim receiving order is made under clause 251, the court must appoint an interim receiver who will have both a management and an investigative function. Clause 252 introduces schedule 3, which lists some of the more significant powers that a court may choose to confer on the interim receiver in order for him to perform his function.

Paragraph 2(1) of schedule 3 provides that the court may authorise the interim receiver to obtain information or to require a person to answer any question. Paragraph 2(2) provides that a requirement imposed on a person as a result of the exercise of that power is to have effect in spite of any restriction on the disclosure of information, however that is imposed.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

I shall help the Minister on his way. I was, perhaps, elliptical in opening the debate. Where does legal professional privilege stand in respect of the clause? That is an example, but it is not the only one.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

There may be a particular example. Let us come to that.

The most obvious restriction in this situation would be a breach of confidentiality. If information is held in confidence by, for example, a bank, a person could sue for damages for breach of confidentiality if the bank disclosed the information, subject to the defences that apply. Paragraph 2(2) overrides that. The amendment would remove paragraph 2(2) from schedule 3, which would prevent the receiver from receiving any information relevant to the restriction applying.

As I said, the role of an interim receiver will be key to the operation of civil recovery. One of his main functions will be to investigate the origins of the property and any other property that may have been generated by the same unlawful conduct. To carry that out effectively, he may require powers to obtain information as set out in schedule 3. Currently, the court may therefore authorise the interim receiver to require persons to answer questions irrespective of restrictions on the disclosure of information that would otherwise apply. That power might be used, for example, to direct a respondent to provide information about property that is or may be the subject of the order.

I can confirm that the wording does not affect the position of legal professional privilege. I am assured that the duty to disclose that may be imposed under the Bill is subject to protection in the public interest of legal professional privilege. That protection applies automatically to all High Court proceedings and does not therefore need to be included in the Bill. If other restrictions on disclosure were to apply to the power that the court may give to the interim receiver, his abilities would be unduly fettered. We do not therefore accept that the restriction should apply as a matter of course.

Section 35(1) of the Data Protection Act 1998 provides an exemption whereby a disclosure is required by order of a court. I understand that that exemption would cover the situation in which disclosure is required by a receiver acting under a court order. If, however, the interim receiver seeks to exercise his power in a way that causes any person concern, that person may apply to the court and ask it to give directions to the receiver on the exercise of his functions. Legal advice is protected, and the individual can go back to the court to challenge the disclosures of information that are being imposed. Other than that, there is no need to fetter the requirement to disclose information to an interim receiver. I hope that the hon. Member for Beaconsfield will accept that.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

I listened carefully to the Minister, and I am mindful that I may have this wrong and his reassurance may be sufficient. The schedule gives what appears to be a wholly unfettered power to the receiver or administrator to demand information of any person. I am mindful of the drafting practice outlined by the Minister, whereby it is not necessary to indicate the ordinary fetters that would apply in civil litigation and High Court practice, and he may be right.

However, I am not wholly reassured. If he talks to his officials, and writes me a letter detailing exactly why that is the case, he may persuade me, but I am worried.

When one reads the provision, it does not look nice—schedule 3 gives the impression of providing an unfettered power. Therefore, I shall reluctantly press the amendment to a vote, just to register my concern about a schedule in a statute giving a power of that kind to anybody. It bothers me. If the Minister can persuade me otherwise, or if he wants to respond now, let him do so. At the moment, however, that provision appears contrary to the sort of principles that I would have expected.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

Is the hon. Gentleman's concern the wider issue of disclosure of information, or is it about the assurances that I am giving in relation to legal privilege?

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs) 4:30, 13 Rhagfyr 2001

It is the wider issue. The Minister has assured me that legal professional privilege would not be affected. I am sure that that is what his advisers have told him, and I accept it, albeit with the caveat that—although this may be due to ignorance, because I have not been a great student of statutes—I have not seen a provision as starkly worded as paragraph 2(2).

The Minister's assurance surprises me, given that the stark wording of the schedule appears to give a completely unfettered power; the words ''however imposed'' are extraordinary. If those words were removed I would be happier, but their inclusion suggests that whatever the source of the imposition of the restriction, it is null and void. Otherwise, why are those words included?

I also worry about the wider issues. There are several areas other than legal professional privilege that might provide compelling arguments. However, I am mindful of what the Minister says about the power of application to the court. As I said previously, words matter, despite what people intend. The wording of the Bill will be the subject matter of interpretation; it is not likely that people will run and look at Hansard to see what was said in Committee—although they might. It seems to me that the schedule provides a completely unfettered power, which would appear to override everything else, however imposed. That power should be more strictly defined.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

There are three effective fetters. One is linked with legal privilege. Another is associated with the ability to go back to the court to prevent the information from being disclosed if someone thinks that such a case can be made. The third is contained in subparagraph (3), which is about how and where the information can be used. It cannot be used to incriminate an individual. The hon. Gentleman may find the wording offensive, but he has not yet provided information that exposes the area of his concern, which would allow me to see whether there is an issue that we should address.

Photo of Mr Nick Hawkins Mr Nick Hawkins Ceidwadwyr, Surrey Heath

I share the concern of my hon. Friend the Member for Beaconsfield that the wording is stark. It is not for us to give an example to the Minister. He is trying to persuade us to withdraw our amendment, and he has not persuaded us that the wording is not stark.

I shall offer one thought to the Minister. He says that one of the safeguards is that people can go back to the court. When someone goes back to the court, the court will be directed to look at the wording of schedule 3, which, if it remains in its current form, will say that the receiver can get any kind of information, regardless of any restriction, however imposed. I appreciate that that sounds a little circular, but that is why we are concerned that the wording is so stark.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

I thought that the hon. Gentleman was trying to become reasonable, and seeking to emulate his hon. Friend—but now he says, ''It's got nothing to do with me. I've got no obligation to show where there is a necessity. It's entirely up to the Minister.'' Other than legal privilege, the ability to go back to the court, and the fetters on inappropriate use of information so gained, I have yet to hear of a category of information—

Photo of Mr Paul Stinchcombe Mr Paul Stinchcombe Llafur, Wellingborough

The clause is phrased in an absolute sense. There is no doubt about that whatever. The Minister has already mentioned one category of case—involving legal privilege—that he says would not bite on it, despite the absolute wording of the clause. Is he aware of any other categories under which the absolute phraseology would not bite?

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

In the spirit that we have tried to engender, at least since we moved on to consider part 5, I suggest that rather than entering into an unreasonable dispute, I should consider the matter and clarify how the provision will operate in Northern Ireland. As soon as I can, I shall expand in writing on what information will be gained and how it will be obtained. I do not know whether that satisfies the hon. Member for Surrey Heath. I see that the hon. Member for Beaconsfield is shaking his head. He is determined on confrontation on the issue, even though I have offered him an explanation, so there is no hope for us. Clearly, we will have to wait until next week for the Christmas season to kick in.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

The Minister should not assume that a decision to press an amendment to a Division is always intended to be confrontational—it is a way of highlighting concern and no more. If I were a draftsman, I would not draft such a measure in such a way, but I accept that I am not a draftsman. I shall press the amendment to a Division.

Question put, That the amendment be made:—

The Committee divided: Ayes 5, Noes 11.

Rhif adran 18 Adults Abused in Childhood — Schedule 3 - Powers of interim receiver or administrator

Ie: 5 MPs

Na: 11 MPs

Ie: A-Z fesul cyfenw

Na: A-Z fesul cyfenw

Question accordingly negatived.

Further consideration adjourned.—[Mrs. McGuire.]

Adjourned accordingly at twenty-two minutes to Five o'clock till Tuesday 18 December at half-past Ten o'clock.