I beg to move amendment No. 324, in page 169, line 2, leave out from 'exercised' to end of line 3 and insert

'in cases where the customs officer or constable who exercised them is required to give a report under section 289(6)'.

The amendment is proposed in order to achieve a more accurate consistency between clauses 290 and 289. Clause 289 requires a customs officer or constable who carries out a search for tainted cash under clause 288 to give a written report to an independent person, who is to be appointed for this purpose by the Secretary of State or Scottish Ministers. Such reports must be made when an officer or constable has exercised the power of search without obtaining judicial prior approval and the case has not proceeded to a judicial detention hearing under clause 294.

Clause 290 requires the appointed person to make an annual report on how the search power is being used. Subsection (2) at present requires him to report on all searches carried out without prior judicial approval, even though, under the provisions of clause 289, only some of these searches have to be reported to him. However, it is obvious that the appointed person can report only on the cases that are reported to him. Amendment no. 324 therefore makes clear that the appointed person's annual report should be concerned with the use of the search power only in those cases.

I do not think that I need to say much, but I shall paraphrase what I believe to be the reasons for the Government's change of mind. It seems that they want to make clearer in subsection (2) the link with clause 289(6), and only with that provision. If I understood the Minister correctly, the change would be a helpful clarification and we have no concerns about it. Am I right that that is what he wants to achieve?

I thought that I had made the position clear. That is certainly our intention.

I wonder, Mr. Gale, whether you would prefer general observations to be made during our debate on the amendment, or whether you would rather have a clause stand part debate?

It would probably be better to have a brief clause stand part debate , if one is wanted.

Amendment agreed to.

Question proposed, That the clause, as amended, stand part of the Bill.

I should be grateful if the Minister would say what sort of person that independent person should be, and what sort of selection process would lead to the point at which names were put to the Secretary of State. I am sure that others will be asked to go through the suggested names, rather than the Secretary of State having to do it himself. That is an important matter. The Minister used the phrase ''independent person'' but I believe that that person should be absolutely and transparently independent. Some guidance might reassure us on whether this is the right way to go. What sort of person are we talking about, and how will the selection process work?

When speaking to the amendment, the Minister said that it would be up to the independent person to say whether he was satisfied about the cases that were brought to his attention. What would happen if he found an explanation so poor that it was insupportable? Does the Minister intend to give the independent person powers to deal with individual abuses? I share the view expressed by my hon. Friend the Member for Beaconsfield that, with the best will in the world, such a power will sooner or later be misused, even if not deliberately, and that some sort of injustice could easily result. Will the independent person have the power to do anything about serious abuses of that sort? If he is to have that power, where are the provisions to be found that would allow some redress?

At the end of the year, the independent person has to make a general report. Will he be able to make recommendations in that report, or will it be a simple factual report of what had happened during the year in question? Such reports will be of use to Parliament only if conclusions are drawn and recommendations made.

The Bill says that the report should be laid before Parliament, but is it the Minister's intention that Parliament should be given the chance to debate it and,

if necessary, vote on it? If changes are needed, will the Minister undertake to make amendments so that the power cannot be abused in future years?

I echo my hon. Friend's comments. Our amendment No. 410 was not selected, for the obvious reason that it seeks to delete the whole of the clause, but my hon. Friend has set out the reasons why it was tabled. It would have given us the chance to explore the need to allow proper consideration of the appointment of the independent person. It would have probed the whole question of who should be appointed, how that would be decided and by whom. Clearly, it is a good idea to have independent scrutiny of how the policy is working. We have no objection to that, but the tabling of such a ''probing deletion'' is a way of finding out how the system will work, who the person will be and how he or she will be appointed. I hope that the Under-Secretary will satisfy our concerns about such important issues and explain in detail what the Government have in mind.

I also hope that the Government may incorporate into the Bill some of what I anticipate that the hon. Gentleman will say. One of our misgivings about clause 290 is that it does not set out how independent people are chosen and appointed, as other recent Acts of Parliament have outlined. Although the Bill is large, I believe that it would benefit if the clause clarified such provisions further. Even if the Under-Secretary cannot provide us with an explanation today, I hope that the Government will consider tabling an amendment on Report or in another place.

When the Minister responds, will he clarify whether the appointed person will be instructed to accept that mistakes will inevitably be made? Mistakes, or seizures without successful results, should not be a cause for rebuke. Will the appointed person be guided to accept that it is far better—if necessary—for a considerable number of innocent people to be inconvenienced by searches either of their premises or their persons, rather than for those who consistently trade in death-dealing drugs to be allowed to go free?

As a Parliament, we should accept that even if most searches prove unsuccessful, the police should not be unnecessarily fettered. The nearest parallel is the current regular searches of young people in my area for knives. Most such searches are unsuccessful, but the knowledge that they are carried out regularly has had a major effect in reducing the percentage of youngsters who carry knives. The prospect of a search undoubtedly deters many youngsters from carrying knives, and the exercise of powers being unnecessarily criticised by an independent person would not be helpful. I hope that my hon. Friend can accept that.

Can my hon. Friend also assure me that the appointed person need not be a lawyer?

Although it is, of course, preferable that he should.

There is some force in the arguments of the hon. Members for Spelthorne and for Surrey Heath, in relation both to the appointment of the person—it would be of benefit if more details were set out in the Bill—and to the force behind the report and its

recommendations when it is laid before Parliament. Under the Bill, the appointed person can make any recommendation that he wants, but that is as far as it goes. Such matters simply disappear into the ether at that point. I would prefer some reference to be made in the clause to the idea that if a recommendation were not followed, a Minister should be obliged to give a reason for that refusal. That is not an unreasonable burden to place on a Minister. I can think of any number of reports containing cogent and well argued cases from the Law Commission and other bodies that land on Ministers' desks and stay there gathering dust. If the appointed person is to have power, that would be a fairly sensible way in which to ensure that it is exercised.

I observe in passing that the clause is not well drafted. For example, it states:

''The report must give his opinion''.

That is meaningless. Presumably, the report must give the opinion of the appointed person. That may sound picky, but the present drafting is inelegant.

Until the hon. Gentleman's last point, he was making a good case for the appointed person to be a lawyer—but his last point seemed to undermine it.

The powers are potentially intrusive and Parliament must satisfy itself that they will be used appropriately. The purpose of this procedure is to ensure that the powers and the manner in which they are used are subject to public scrutiny. We do not intend the individual to report on every case—I hope that I have not misled the Committee in that respect. He will require reports to be made to him when appropriate, and those reports will cover such issues as the reasons to suspect that cash was the proceeds of crime or was intended to be used for crime, in addition to the justification for conducting a search without prior judicial authority. We do not intend the individual's subsequent report to go into the details of every case, which was part of the point made by my hon. Friend the Member for Glasgow, Pollok (Mr. Davidson). The individual should report to Parliament giving his opinions of the way in which the powers have been used, to allow us to check on an annual basis that they are not being abused, and to take action if they are.

As I said in response to the hon. Member for Spelthorne, the appointed person will be independent and assigned by Ministers to oversee the exercise of the search powers. There will be a separate individual for Scotland, who will be appointed by Scottish Ministers. The terms and conditions of those individuals are yet to be decided by the appointed Minister. We envisage that the post will be part-time, and it may be suitable for a person such as a retired judge.

My hon. Friend the Member for Glasgow, Pollok is probably right about what should and should not be included. However, if the appointed person is to be independent, it will be for him or her to decide how to structure the report. We do not want Ministers to tell the person what they will and will not report. That

person will examine how the powers are being used and will report on that, and on the trends of use, and will make recommendations if he or she has worries.

I can understand why the Minister has not yet undertaken detailed consideration of the terms and conditions of the independent person. Is he able and willing to consider the matter before Report? That is important because the process is a vital safeguard against the abuse of a major power. Will he give us further information on Report?

As I said, this is as far as we have gone at the moment. We want to move on as quickly as possible and give all hon. Members as much information as we can. However, I have mentioned the type of person that we are considering. We do not want to fetter the report. We want the appointed person to examine the way in which the powers will be used, to give his or her opinions and to make recommendations. We want to ensure that the recommendations are public. The hon. Member for Orkney and Shetland expressed concern that the process ends there and there is no requirement to act on the recommendations—but if a report is made and its recommendations are ignored, no Minister of the day will get away without commenting on those recommendations and giving reasons why they are rejected, or not acted upon. That is the nature of our parliamentary procedure, and I do not think that there will be a problem. If the report makes public recommendations, Ministers must respond to them.

I did not ask whether the Minister would give further thought to the independent person now. I asked whether he would be able to give us more information on Report. I repeat that: will he give us an undertaking to provide more details on Report?

If things have moved on, obviously I will. I am also prepared to listen to any suggestions that the hon. Gentleman has about the structure. If he wishes to feed those in, either now or on Report, I will be happy to listen to him. As I have tried to tell him, it is not our intention to be secretive. We do not think that a full-time post is justified, and we require someone with some judicial experience, so the post may be appropriate for a retired judge. If we clarify our thoughts before Report, I will give the hon. Gentleman the benefit of our decisions.

I am grateful to the Minister for inviting me to make suggestions. One comes to mind immediately: in order to stress the person's independence from the Executive, will the Minister consider making the appointment subject to the approval of Parliament?

No, I will not. We do not intend the person to be an employee of the Government, or anyone who cannot be deemed independent. The person will be someone with a legal and judicial background. The hon. Gentleman's fears are not justified.

I am grateful to the Minister for giving way to me on the question of whether the person's independence would be increased if he or she were approved by Parliament. I should think that a Parliamentary vote, with the Whips operating in all parties, is less likely to make the person appear independent—unless Government Whips, former Whips and Opposition Whips have decided, as a new year's resolution, to allow Members to make up their own minds. I doubt that they have.

My hon. Friend's comments about former Whips are getting very personal, and I shall not rise to the bait.

The scheme that we propose is similar to that currently provided under the Immigration and Asylum Act 1999, in which an appointed person produces an annual report on refusals for entry clearance. That system was first introduced under the Asylum and Immigration Appeals Act 1993. It provided independent scrutiny of the refusals of entry clearance applications presented to Parliament. That is the kind of system that we envisage in this case.

Clause 290, as amended, ordered to stand part of the Bill.