Proceeds of Crime Bill – in a Public Bill Committee am 3:30 pm ar 31 Ionawr 2002.
I beg to move amendment No. 609, in page 245, line 37, leave out paragraph (a).
With this it will be convenient to discuss the following amendments: No. 617, in page 245, line 37, leave out 'or may be'.
No. 610, in page 245, line 39, leave out paragraph (b).
No. 621, in clause 427, page 248, line 24, leave out paragraph (a).
No. 622, in clause 427, page 248, line 26, leave out paragraph (b).
We now come a series of amendments that deal with the further disclosure by the director. Subsection (1) states:
Information obtained by or on behalf of the director in connection with the exercise of any of his functions may be disclosed by him if the disclosure is for the purposes of any of the following--
(a) any criminal investigation which is being or may be carried out, whether in the United Kingdom or elsewhere.
Amendment No. 609 would delete paragraph (a). Amendment No. 617 would retain that paragraph, but remove the words ''or may be''. A further amendment is consequential and deals with Scotland.
However, what I am asking the Committee to think about is the criminal investigations that may be carried out in the United Kingdom or elsewhere. Paragraph (b) deals with proceedings that have already been started in the United Kingdom or elsewhere.
Does my hon. Friend agree that it is not the purpose of the Bill to deal with prosecutions for crime generally? Subsection (1)(a) appears to widen the scope of the Bill.
I agree. The intention of the Bill is to deal with the proceeds of crime. That raises the issue of the confiscation of assets from those who have been convicted and have a criminal lifestyle. There are also issues of civil recovery and the taxation of people against whom nothing can be allegedand no civil recovery or confiscation can be madebut who may fall within the taxation powers. Although it features in the Bill, money laundering is a separate matter, with which the director may not be directly connected. I see that the Minister is nodding.
My hon. Friend is absolutely right. The Bill is not directly concerned with criminal investigation. As I said to the Minister earlier, I am worried that the director is being given a series of powers to obtain information that are, on the face of it, greater than those of standard law enforcement agencies. That is, however, difficult to know unless we examine the matter in great detail, and the Minister may be able to help us to do that. I would be grateful for his contribution and the expertise of his officials. However, subsection 1(a) and (b) say that the director's information may be used for purposes of bog-standard law enforcement, rather than for his extraordinary functions.
My hon. Friend has put his finger on it. The Committee's worry should be that through the back door, we might be giving much greater powers than were intended. Although the provision
may appear innocuous, it could translate into a substantial increase of law enforcement powers.
I agree. It is important to read subsection (1) in its entirety. Paragraphs (a) and (b) can easily be disassociated from the exercise of the director's functions mentioned in paragraph (c)that is obvious. Paragraph (d) refers to
the exercise by the prosecutor of functions under Parts 2,3 and 4,
but those parts are directly linked to offences that are committed for the obstruction of the exercise of those functions. Paragraph (e) refers to
the exercise by the Scottish Ministers of their functions under part 5,
and paragraph (f) refers to
the exercise by a customs officer or a constable of his functions under Chapter 3 of Part 5.
Paragraph (g) is about the safeguarding of national security. However, that has always been such an important issue that it may fall within a wholly exceptional category, so I do not have too much trouble with it. Paragraph (h) relates to investigations outside the United Kingdom, where a completely different problem arises. However, it is linked to the director's functions, rather than being outside them. Paragraph (i) mentions
the exercise of a designated function,
which raises the possibility of a future statutory instrument, although I shall leave that to one side.
My hon. Friend is correct to say that paragraphs (a) and (b) have nothing to do with the director's functions. I want a debate on why they are in the Bill, and I hope for an explanation. What are the consequences for law enforcement? I apprehend that if the director is given a power that might be greater than those of the law enforcement agencies, the agencies will exert pressure to be able to use his information when they cannot get the information for themselves. That would not be good for the director or for law enforcement, and it is not a good thing for this Parliament to legislate for.
My hon. Friend has unearthed a plot. Does he suspect an ulterior motive that has been disguised from the Committee? He has fingered something very important.
I am not sure whether I would describe it as a plot. After all, one can read it in the Bill. However, the power is not covered by the Bill's described purpose. From that perspective, it is an unusual power, and it widens the scope of the Bill, even as the Minister described it on Second Reading. Important issues are attached to paragraphs (a) and (b), and I would be grateful to hear the Minister's justification for them, so that we can decide whether we wish to allow them to remain in the Bill, or whether we will object to them.
I am grateful to the hon. Member for Beaconsfield for tabling the amendments. They are very useful, and strike at a fundamental concern that I have felt throughout the Committee's deliberations on the Billthe issue of the cross-contamination between the civil functions, as laid out for the director and the Government agencies, and the criminal functions.
In earlier sittings, we gave fairly wide-ranging, swingeing powers to the director and other officers for the recovery of articles and for conducting investigations under civil procedure. I was happy to go along with that because we were dealing with civil procedure, not with something that would deprive someone of their liberty. That is an important distinction.
We have the Minister's assurances that there is a hierarchy of prosecution, recovery and so on, but that does not appear in the Bill. We were told that it cannot appear there because of drafting problems--I never quite understood what they were. I am concerned that by including subsection (1)(a) and (b) we open a back door and provide extra powers for law enforcement agencies.
In my experience, if a back door is opened, someone will use it. Perhaps not immediately, but eventually, the hard cases that make bad law will occur. Law enforcement agencies will pressure the director of the Assets Recovery Agency to use the provisions. I believe that that is wrong, and I would never have agreed to many of the things that I have agreed to elsewhere in the Bill if they had related to law enforcement. That is a step too far for criminal procedure.
When I look down the line at how the Bill will be regarded by the courts in a few years, I foresee massive problems with cross-contamination. I can envisage appeal case after appeal case being brought on points concerning the admissibility of evidence, and it will be asked how the director came to exercise those functions in the first place. To answer the point put to me earlier by the hon. Member for Glasgow, Pollok, we do not promote the cause of law enforcement by providing the enforcers with back-door powers. If we take the view that the police, Customs and Excise or any other law enforcement agency should have those powers, we should give them to them expressly. We should not do it by the back door. The Government are heaping up problems for the future.
The Chinese walls between the functions of the Assets Recovery Agency and the criminal prosecution authorities are important. It was because of them that I expressed concern earlier that the Lord Advocate was to be given the functions in Scotland. In Scotland, all those involved work in the same building, and the whole set-up would become far too incestuous and would lead to profound difficulties.
I hope that the Minister will give serious consideration to the points raised by the hon. Member for Beaconsfield about the inclusion of these provisions. There is a great deal of force in the argument that there should be a much more effective separation of powers than there will be if they remain part of the Bill.
Before I respond in detail, may I say one thingnot to score points, but to put something on the record? I accept that this is a serious Committee issue, but we have agreed to cull time in Committee. The Opposition know the gravitas of their various amendments, so it is pretty ridiculous to waste time in Committee so that we wind up at this time of the day
moving on to deal with substantial issues that need proper consideration, with yet more amendments. The Opposition have some responsibility to use time in Committee in an appropriate way, and not to deprive us of the opportunity to consider the later amendments properly. The hon. Member for Spelthorne has spent a lot of time on earlier amendments. Other members of the Committee objected to that. We now have just over an hour before the knife falls, and we still have very serious issues to consider.
The Minister said that he wanted to put something on the record, but that cannot go unchallenged. Whatever may have taken place this morning, he must accept that it was in order, because the Chairman allowed it to happen. The Opposition did not impose the timetabling mechanisms for the Committee. Indeed, the hon. Gentleman will probably be aware that we objected to that timetabling. The time limits were the Government's proposals, and they had a majority. The Minister may not like what is happening, but it is not for him to pick and choose, but for the Opposition to question him. Surely to goodness he has the good grace to accept that we will be the deciders of our own tactics.
Absolutelyand I am exposing the consequences of those tactics. It is true that the Opposition object to timetables in principle, but there was much discussion, much agreement and much flexibility. Changes were made whenever they were requested.
I do not want waste time now talking at length about this matter.
My question is short. Will the Minister be more specific about what he means when he refers to ''the Opposition''?
I aim nothing at the hon. Gentleman or his party; I am talking about the Opposition Whip.
Order. Can we deal with the amendment?
Yes, Mr. McWilliam. I shall not give way to the hon. Gentleman.
Amendments Nos. 609 and 610 would delete subsection (1)(a) and (b), which allow the director to disclose information for the purposes of criminal investigation or criminal proceedings. Amendments Nos. 621 and 622 would do the same in respect of the Scottish clause. Amendment No. 617 would restrict the disclosure of information by the director for the purposes of a criminal investigation to cases when a criminal investigation was being carried out, whereas the clause currently allows for disclosure when a criminal investigation may be carried out.
The director will require statutory authority to enable him to disclose information. The clause provides that authority. It gives the director the power to disclose information for certain specified
purposes, subject to restrictions that are already set out in the clause. The provisions for the disclosure of information by the director under the clause and the equivalent Scottish provisions under clause 427 in relation to criminal investigations and criminal proceedings mirror the provisions under section 17(2)(a) and (b) of the Anti-terrorism, Crime and Security Act 2001. They apply to disclosures that may be made under, for example, the Harbours Act 1964, the Employment Agencies Act 1973, the Consumer Credit Act 1974 and the Estate Agents Act 1979.
The provisions allow the director to disclose information that he has obtained, or which has been obtained on his behalf, in connection with the exercise of his functions, if the disclosure is for the purpose of any criminal investigation that is being or may be carried out, whether in the United Kingdom or elsewhere, and any criminal proceedings that have been or may have been started, whether in the United Kingdom or elsewhere.
It seems likely that in exercising his functions in criminal confiscation and civil recovery investigations, the director will come across information that relates to criminal conduct. Indeed, that seems inevitable, given his focus on criminally or unlawfully acquired property.
As we have made clear from the outset, the Government intend that prosecution should be the primary goal. We recognise that the director's investigations may bring to light information that would be relevant to a criminal investigation, as in the case of a civil recovery or confiscation investigation. In such cases, the director must be able to refer the information to the law enforcement agencies, which might involve the suspension of his civil recovery investigation if the information involved related to the property being considered for civil recovery. That was set out in the paper that I made available to the Committee before our consideration of part 1 of the Bill, in which we outlined how we envisaged that the director would exercise his functions.
We are considering whether the director should also be able to disclose information for the two other purposes specified in the Anti-terrorism, Crime and Security Act--initiating or ending such a criminal investigation or proceedings, and facilitating a determination of whether such an investigation or proceedings should be initiated or ended. It is not clear that the power to disclose available to bodies covered under that Act should be wider than the power available to the director. If we reach that conclusion, I intend to table amendments on Report.
The Minister's comments seem to reinforce further the argument for specifying the hierarchy in the Bill. Does he understand the practical implications of his comments for the director and the criminal law investigation authorities? He seems to be saying that if the director comes across information that should give rise to criminal proceedings, he must slam on the
anchors, and it will go to the criminal investigating authorities, which may or may not proceed with it. The point at which the director's investigations conclude will be a grey area. That is heaping up trouble.
I understand the hon. Gentleman's point, and I am not trying to detract from the issue that may be involved.
When information is passed on for criminal investigation and a prosecution is subsequently brought, nothing in the Bill cuts across people's rights in respect of self-incrimination. If an attempt were made to use information gained under the director's investigating powers in that way, case law would protect the person involved against its inappropriate use. That is what will happen in the case of evidence.
In dealing with information that will not necessarily be used as evidence but subsequently becomes part of a criminal investigation--the ''bog standard'' criminal investigation, as the hon. Member for Beaconsfield described it--all the director's powers are subject to judicial approval. He must satisfy that judicial authority that he requires the information in order to carry out functions in which he is currently engaged. That safeguard is provided. He cannot simply acquire information in order to pass it on to law enforcement agencies for use in prosecution.
We intend the hierarchy to operate. All Committee members want that. The public would think that we were putting ourselves in a strange position if we set up a situation in which an agency that was pursuing the proceeds of crime came across information clearly relevant to a prosecution, yet could not pass that information to the prosecuting authorities because we had banned it from doing so. I am unsure whether the public would understand why that should happen. There are many circumstances in which other people and organisations are obliged to do that. Should we ban the director from doing that, when there is judicial oversight of all the powers that he has been given? We are addressing a substantive issue, but we ought not to go down the route that has been suggested.
How is Hansard going to report that?
As an exclamation, perhaps.
I listened carefully to the Minister's remarks. He persuasively made an important point. I agree with him that it would be a little odd if the director's investigations were to unearth information that could have been disclosed to another law enforcement authority during the ordinary course of its investigations, but the director was precluded from disclosing it. That could result in a failure to alert the law enforcement authority to important information with regard to the prevention or prosecution of a crime, and it could lead to additional costs, as that authority would have to search for that information independently. There is a logic to the Minister's argument.
However, there is also a problem with it. We are setting up a system that is acknowledged to be for a specific purpose--indeed, I have described it as a parallel system of justice. That is one of the reasons why I had concerns. That system is specifically targeted at money, and it specifically gives the director extraordinary powers that are unusual--if not, in some cases, novel--under our legal system.
Because they exist, those powers will be used. I fear that they will begin to be used very frequently, and for a purpose for which they were not principally intended, which will enable law enforcement agencies to obtain information that they would not otherwise have been able to get.
Would the hon. Gentleman care to comment on the Minister's revelation that, apparently, such information will be inadmissible, in accordance with case law? Welcome though that concession is, there is nothing in the Bill that indicates that case law continues to apply hereand as this will be an Act of Parliament, it would trump the previous case law.
Two issues are at stake. First, I am not satisfied with what has been said about the information not being used as evidence. If it were capable of being passed to the other law enforcement agencies, they could gather evidence based on that information. That is not a good factor, and it is the one that worried me most. I should like to hear more from the Minister about the fact that nowhere is that spelled out in the Bill. There are provisions under which specific questions asked of an individual cannot be used, because of the protection against self-incrimination. Although people may be required to answer such questions, their answers cannot be used against them. I accept that under those provisions, such matters could not be used as evidence in a criminal prosecution. To that extent the Minister may be right, but that does not get away from the fact that it is still information that other law enforcement agencies would not otherwise be able to obtain.
I entirely agree with my hon. Friend that the Bill will set up a parallel system of justice. Will he say how that marries with the Minister's assertion that there would still be a strict hierarchy? It has been asserted that the agency will play a part in the hierarchy. However, the nub of our argument is that there will be a parallel systemand, clearly, an opportunity for abuse.
The difficulty is that the hierarchy envisages that the first thing is to consider prosecution. That is the top end of the hierarchyyet oddly enough, that is not where the most power lies; the most power lies lower down the hierarchy, and is given to the director for the purpose of confiscating assets or civil recovery. On the face of it, he will have powers that are wider than those of any other enforcement individual or authority in the land. He will be a powerful figure in the obtaining of information and the ability to use it for a specific purpose.
It strikes me that there is a direct conflict between the hierarchy and the way in which power is disposed. Although prosecution is at the top of the hierarchy, it is lower down the hierarchy that the most investigative
powers will be provided. Yet the Minister is asking the Committee to approve a clause that will allow information obtained for a purpose lower in the hierarchy to be fed back up to the top.
Can the hon. Gentleman assist me by specifying what mechanism will come into existence whereby the steps taken by the director of the Assets Recovery Agency to obtain information will be passed on to other law enforcement authorities? Is he seriously suggesting that they will put pressure on the director to use the procedure?
Pressure will not be needed. Let us suppose that the Crown Prosecution Service investigates a major crime and it cannot find the evidence, but thinks that money laundering is going on. Although it cannot bring proceedings, it tell the directora perfectly legitimate processwho carries out his investigation. During that investigation, by using his powers the director may find the evidence that the CPS has not been able to lay its hands on and feed it back to the CPS. He will then, quite unwittingly in a sense, have acted as the CPS's own investigator to obtain information under our unwritten constitution, which is the power that we give to prosecutors. The CPS will then start the wheels grinding again. It is a serious issue.
The sound scenario that the hon. Gentleman outlines carries a further problem. It leaves as the arbiter of what constitutes grounds for investigation and criminal proceedings staff of the director of the Assets Recovery Agency, who will not necessarily be qualified to do that work. In that sense, the interests of justice will not be well served by the provision.
I entirely agree. The hon. Gentleman makes a good point. The matter will be in the hands of those whose prime responsibility is asset recovery. The Minister has properly and repeatedly emphasised that we are discussing asset recovery legislation and a system not of sending people to prison or giving them criminal convictions but of depriving them of assets. It is accepted that that will be done on a non-criminal test in some circumstances in which people already have convictions but the money involved is not necessarily linked to that conviction, and in circumstances in which no criminal conviction is involved and extraordinary powers are given that override some of the usual safeguards in our legal system.
So that we stay on the issue at hand, I should like to make a couple of things clear. The director does not have powers in relation to money laundering. He can use his powers only for his functions in confiscation and civil recovery.
The hon. Gentleman referred earlier to my statement about use of evidence being specified in the Bill. I apologise for having taken some time to find the reference. I refer him to clause 349(1), in which the director's main additional power--the disclosure power--is specified:
A statement made by a person in response to a requirement imposed on him under a disclosure order may not be used in evidence against him in criminal proceedings.
Overriding provisions on perjury are referred to later in that clause.
That is precisely why I said what I did in response to the hon. Member for Orkney and Shetland (Mr. Carmichael). I knew that we had considered safeguards. However, the Minister must accept that that does not prevent the passage of information. It prevents the use of that information as evidence.
Mr. Ainsworth indicated assent.
As the Minister nods, I believe that we agree about that.
We face a conundrum, and it is difficult to see a middle way out of it.
On the whole, I am not inclined to third ways. They do not seem to have got us very far in the past five years.
I considered whether it might be possible to draft subsection (1)(a) and (b) so as to highlight the nature of the problem and ensure that the only information disclosed was information that could be obtained by the law enforcement agency with its own powers. If the Minister were to consider whether that might be a practical way to proceed, we could have a further discussion on Report, and it might commend itself to me.
I am trying to be helpful. I accept that there is a problem. Considering some examples, it might seem absurd to outsiders that the director will be unable to communicate information. However, although there may be an element of absurdity, as the Bill has been drafted for a specific purpose, my inclination is to delete paragraphs (a) and (b). We have established a director and given him specific powers for that purpose, not for general criminal investigation. The Minister is right to say that my earlier money laundering example was a bad one. Although money laundering is in the Bill, it has nothing to do with the director. Arguably, it should not be in the Bill at all, but it has been put in for the purposes of Government legislative timetabling.
That granted, my inclination is to take out paragraphs (a) and (b) and live with the consequences, because I am not happy about them. The provisions will raise huge problems that might ultimately undermine the director's credibility. His purpose could well be subverted and he could be used--although not deliberately--as an investigative agency for the law enforcement authorities. That worries me for a host of reasons. It could lead to a great many challenges under the Human Rights Act 1998.
We may regret leaving in the paragraphs, but that said, I am not unmindful of the Minister's problem. If I could see a way out of it that did not involve the elimination of the two paragraphs, I would be
receptive to it. However, at the moment, I am inclined to press the amendment to a vote.
Before the hon. Gentleman does that, let me intervene on him. I do not think that there is a problem with evidence. I think that we are correct on that issue. [Interruption.] I am not dead sure that the hon. Member for Orkney and Shetland is altogether with me on that.
The subject is worthy of further consideration and I am happy to provide it. I am not absolutely clear that the problem is not covered by the judicial approval that is required in the first place for the director's powers. I give the hon. Member for Beaconsfield an assurance that I will consider his points further and give him the opportunity to return to the subject, if he wishes, on Report. I shall reflect on whether I am satisfied that the point is covered by that judicial oversight. If it is not, I shall consider whether there is a way for us to cover it. I am glad that he spoke as he did, because it would be a real dilemma for us presentationally if we were to prevent information from being passed on to the prosecuting authorities. The issue is worthy of further reflection.
Ian Lucas rose
I give way to my hon. Friend. Oh no, I cannot, I am interveningat length.
At excessive length.
I wonder whether, as another hon. Member wishes to contribute, it would be proper for me to sit down. Perhaps I can resume my speech later.
I am grateful for the Minister's suggestion. I wonder whether, as a middle way, we could have judicial consideration of whether the information should be transferred; it should not be assumed that it always can be. Instead, there could be judicial consideration of, for example, the gravity of the information. It would be a major step for someone to suppress information relative to a serious crime and not pass it to investigating authorities. I hope that a middle way can be found, because in certain circumstances it would be right and proper for the information to be passed on, although I respect the views propounded by the hon. Member for Beaconsfield.
I thank my hon. Friend. I shall not try to respond to his suggestion off the top of my head. I thank the Committee for the way in which it has addressed the point, and I reiterate my commitment to a further consideration of it. In view of that, I hope that the hon. Member for Beaconsfield will withdraw the amendment.
I am faced with a slight dilemma. I am minded to withdraw the amendment. My anxiety is that I do not know how long will be allocated to the issue on Reportor how many points about it the Minister will want to considerand there is always a lurking anxiety that we might end up not voting on it, even if I wished to delete it.
That is what I expected the Minister to tell me, but he knows how swiftly two days can pass.
That causes me serious concern. I am hesitating because I am unsure whether to press the amendment to a Division.
I have decided to do that, so that opinions can be fully recorded. I hope that the Minister will forgive me: my decision does not detract from my wish to be conciliatory, because I acknowledge that he faces a genuine problem. However, as he has not yet solved it, the appropriate course of action is to cut the Gordian knot--rather than to try to unravel it.
I wish to press the amendment to a Division--if only for symbolic purposes.
Question put, That the amendment be made:--
The Committee divided: Ayes 6, Noes 13.
I beg to move amendment No. 611, in page 246, line 2, leave out paragraph (h).
Paragraph (h) refers to
investigations or proceedings outside the United Kingdom which have led or may lead to the making of an external order within the meaning of section 432.
Subsection (2), which refers to interpretation, states:
An external order is an order which--
(a) is made by an overseas court where property is found or believed to have been obtained as a result of or in connection with criminal conduct, and
(b) is for the recovery of specified property or a specified sum of money.
That statement is of relevance to the Committee's debate on the penultimate amendment. The key issue is whether the director--or anyone else--can maintain control of information once it has been passed outside this country's jurisdiction. It raises important points, about which the Minister might be able to provide reassurance.
I appreciate that, if there is to be an international regime for seizing the proceeds of crime, information will have to be exchanged between police authorities, directors and others to achieve that. However, as has been discussed, the Bill deals with information that, by its nature--particularly in relation to the Inland Revenue and Customs and Excise--will have been obtained from individuals in confidence and is subsequently passed to the director. What control
could be maintained of such information if it were subsequently passed to an overseas organisation?
The answer might ultimately depend on how the guidelines are drawn up. Therefore, it would be helpful if the Minister were to comment on what is envisaged with regard to international co-operation. With which countries is that co-operation likely to take place, and what safeguards will be present to ensure that information is not misused or used in a way that is contrary to the aims of the Bill?
An external order is defined in clause 432 as an order that is made by an overseas court where property is found, or believed to have been obtained, as a result of, or in connection with, criminal conduct. The order would be for specified property or a specified sum of money. The provisions that allow for co-operation in respect of such orders are in part 11.
Allowing disclosure for the purpose of investigations or proceedings outside the United Kingdom that have led, or may lead, to the making of an external order will enable the United Kingdom to co-operate with overseas authorities. If we expect other authorities to co-operate with us in the fight against crime, we must be prepared to co-operate in their investigations into whether property has been obtained as a result of, or in connection with, criminal conduct.
For example, the director may obtain information about a person's property or finances that indicates that they were obtained through criminal conduct. That information may not be relevant to the director's investigation because it may relate to property that is held overseas, which he does not wish to pursue. However, the information could be relevant to an overseas investigation with a view to obtaining a court order to recover the property, or for proceedings already in train. In those circumstances, we should be capable of disclosing information because, as I said, it is important that we may co-operate with our international partners to recover the proceeds of crime.
It would be odd if the United Kingdom were able to assist an overseas authority or court to give effect to an external order, but could not assist by providing information about investigations or proceedings that were relevant to the order. That might affect the willingness of the overseas authorities to pass on information to our own law enforcement authorities.
Restrictions on the disclosure of information by the director will apply before he may disclose information, and we discussed some of those during the debate on clause 422. Any information that is disclosed by the director or a permitted person may be made subject to restrictions on onward disclosure.
Under clause 423(8), a disclosure may not be made that contravenes the Data Protection Act 1998 or that is prohibited by the Regulation of Investigatory Powers Act 2000. It is implicit that the provisions of the Human Rights Act 1998 must be taken into account before the director makes any disclosure.
We are playing an active role in trying to encourage international co-operation in the investigation of crime, and that is a proper role for the British Government. The provisions are in line with that. We must take the growing international dimension of criminality all too seriously, and for those reasons I ask the hon. Member for Beaconsfield to withdraw the amendment.
I listened carefully to what the Minister said, but he did not persuade me, because I have serious concerns. I am glad that reference has been made to human rights, because it would have been possible to mention those during one of our discussions on an earlier amendment. However, none of us did, and subsequently Mr. Gale indicated to me informally that he was not minded to have a clause stand part debate, which would have enabled us to raise the issue. I am therefore grateful to the Minister for referring to it, because it must be debated at some stage today. Whatever may be thought about the contributions that have been made to the debate, this is one of the most substantial issues of the day.
It will not wash to say that the director can place restrictions on the onward transmission of information. Once the information is out of the jurisdiction of the United Kingdom, there is nothing whatever that the director, a British court or anyone else can do about it. It is outside our control. [Interruption.] The Minister shakes his head. Will he tell me how it is possible under the Bill to control a foreign jurisdiction?
We do it all the time. We extradite people from foreign jurisdictions on the grounds that they will not be onwardly extradited in certain circumstances.
Perhaps that does happen, and works on the basis of assurances. The Minister said originally that it was implicit that human rights would be taken into account. Labour Members have made great play of extending human rights legislation, and they will agree that human rights are important. Respect for human rights should not be implicit in the Bill, but explicit. Will the Minister say what safeguards are in the Bill? If human rights were important, would it not be sensible to restrict the foreign authorities to which any information could be passedto signatories to the European convention on human rights, for example?
The Data Protection Act 1998 prohibits the disclosure of information outside the European Economic Area unless the discloser is satisfied that the information will be properly protected in the country to which it has been sent.
I need to think about the implications of that for a moment. If I remember correctly, we were told this morning that nothing we were doing would override the workings of the Data Protection Act. If that is so, why do we need such provisions, because safeguards are in place anyway? We are now duplicating measures. The Minister cannot have it both ways: one minute he says that such measures are
implicit in the Bill, and the next minute he says that they are explicit. Which is it?
Information cannot be disclosed unless we give the director the power to disclose it.
I have to accept what the Minister says, but I am not persuaded. When he has his wits about him, perhaps he might say in a more general way whether he is entirely satisfied that human rights will be respected in such cases. What measures will he take to ensure that before information is disclosed, inquiries are made into whether the regime seeking the information can be trusted to use it lawfully?
We have all accepted that the measures will set up an investigation and give someone powers that are not usually held. I foresee a possible problem. When a police force in one country seeks information from another police force, the channels of communication, safeguards and restrictions are well known. The track record of the foreign police force in respect of legislation that affects the British law enforcement agencies will have been tried and tested. However, on our own admission, the director will be in possession of information that could not be obtained from a police force. Before I left the Committee to go into the Chamber for a moment, it was very much the issue of debate that the authority had powers greater than those of the police.
The Minister can bob up and say that clause so-and-so says that that will not happen, but when the Bill is enacted, a foreign police force will have a route whereby it could obtain information that it would not be able to obtain through its usual channels. How are we to know for what purpose the foreign police force really wants the information? This is a serious matter. I hope that the hon. Gentleman accepts that I am not in any way trying to waste his time. I seek assurances from him about handing over to foreign authorities matters over which we have no control, implicit or explicit.
There was an interesting point during the dialogue between my hon. Friend the Member for Spelthorne and the Minister. The Minister mentioned the Data Protection Act 1998, which provides explicit safeguards for data, although such a safeguard is not explicitly spelt out in the Bill. However, I accept the hon. Gentleman's express word that if we asked for an assurance, he would expect it to be met. I wondered why we could not include such a provision. [Interruption.] If I am wrong, maybe the Minister can identify where the provision is in the Bill, because it is clearly not in this part of it.
I see that somebody is passing a note to the Minister, so he will soon be able to tell me where the provision is.
It is a shopping list.
Or perhaps the Minister has been told that the provision is not there.
My hon. Friend the Member for Spelthorne elicited a good point from the Minister. As the Data Protection Act 1998 contains an explicit statement,
should not such a statement also be in the Bill? If there is none, will the Minister consider including one?
The reference that comes to mind relates to Scotland, and is in clause 425(3). However, that is repeated in other parts of the Bill. Nothing authorises the disclosure of information in contravention of the Data Protection Act or the Regulation of Investigatory Powers Act 2000. We have discussed that. My note tells me that we do not envisage that outward disclosure would involve information other than that covered by the Data Protection Act.
I think that the Minister has answered my question. I confessI have learned this during the passage of the Billthat I had assumed that there would be categories of material entering the director's hands that might not be covered by the Data Protection Act or part 1 of the Regulation of Investigatory Powers Act. I may be wrong about that. If the Minister reassures me that that will not be the case, he has answered part of my question.
We do not envisage that there will be information not covered by the Data Protection Act.
I beg to move amendment No. 612, in page 246, line 5, leave out paragraph (i).
With this it will be convenient to take amendment No. 636, in page 246, line 27, after 'nature', insert
'directly relevant to the purposes of this Act'.
There are two amendments, one of which refers to England, Wales and Northern Ireland, and the other to Scotland. Amendment No. 612 would delete subsection (1)(i), which provides that information may be disclosed based on
the exercise of a designated function.
I want clarification from the Minister. I presume that the paragraph relates to the exercise of a function that is yet to be designated. I am not happy about that. We return to the point about statutory instruments giving new powers to the director, which has a series of knock-on consequences on his ability to disclose information subsequently. I have explained to the Minister that I am anxious about that, and I shall not repeat my views about legislation by statutory instrument. Will he confirm that that is what is intended by the paragraph, and tell the Committee how the provision will operate?
In the note that I circulated to the Committee, I made it clear that the order-making power in subsection (9) exists because new purposes for which disclosure should be permitted may emerge over time. It is therefore sensible to include the order-making power.
In the light of the need for such a power, it is clear that the director would need to be able to disclose information for any new functions listed under the order. Amendment No. 612 would not allow that. Amendment No. 636 would ensure that when making an order, the Secretary of State would have to be satisfied that the function for which disclosure was to be permitted was not only of a public nature but also directly relevant to the purposes of the Bill.
We are not convinced that amendment No. 636 would make a useful addition to subsection (9). We believe that it is proper that any addition to the list should relate to the exercise of public functions, but we do not accept that those functions need necessarily relate directly to the purposes of the Bill. The order-making power under subsection (9) is subject to the affirmative procedure, which will allow both Houses to scrutinise the Secretary of State's use of the power if and when he exercises it.
Did I hear the Minister correctly? Did he say that any public function should be covered by the provision, and that it does not have to be a function that is relevant to the purpose of the Bill? If so, I am appalled and alarmed. I thought that the purpose of the Bill was to focus on the proceeds of crime. The hon. Member for Glasgow, Pollok has made the point time and again that it is crucial that we focus on that issue, but I thought that I heardI hope that the Minister will tell me I am wrongthat the Secretary of State can involve any public function that takes his fancy by order, rather than by legislation.
We have repeatedly heard the word ''believes'', and now we have the word ''thinks''. I wonder why the word is not ''believes'' on this occasion, because that is what was used in the past.
He believes he thinks.
Yes, we could have both. We could have a belt-and-braces job, with ''believes'' and ''thinks''. It does not really matter.
I know that it is in order for the hon. Gentleman to reveal his ignorance to the Committee, but is it really wise? This morning he spent half an hour suddenly discovering that the director had powers of taxation, which we spent a whole day discussing only a month or so ago.
There are two answers to that. First, I have long since stopped worrying about my ignorance; I would not have got very far if that had occupied my mind too much. Secondly, better the sinner that repentethand discovers such things at the last minute, rather than not at all. [Interruption.] I would have hoped that the Minister, who is saying that I am taking up his time, had spent a productive day. He will have done if he has managed to educate a poor demented Conservative Member of Parliament who does not understand such things. That would be time well spent.
I have spent my day quite well, because I have been doing some statistical analysis. We had a little legal debate earlier, as the hon. Gentleman
may recalland we have found that Labour members of the Committee have 71 years' experience practising at the Bar or as solicitors, whereas Opposition Members have only 29 years.
I hope that the Minister has taken into account the many years that I have spent practising at the baralthough mine was the Pig and Whistle rather than the Old Bailey; I am not sure which he is counting. [Interruption.] It was not me who went down this route; I was raising what I consider to be a particularly serious matter.
I am quite enjoying the badinage between the Minister and the Opposition Whip, but is it significant that the hon. Gentleman has looked at the Annunciator several times to check how long he must go on speaking? Is that part of a deliberate delaying tactic to ensure that we do not debate all the clauses that are up for discussion before the guillotine falls? Will he clarify whether that is a strategy or self-indulgence?
I hope that you will allow me to answer that, Mr. McWilliam, although it is not necessarily relevant. I have indeed looked at the monitor more than once, for the simple reason that while I was away I was in the Chamber, and there were difficulties and issues about the progress that was being made. I was anxious to see whether the arrangements that I had put in place had succeeded. The hon. Gentleman is right: I was looking at the monitor, but not for the reasons that he thought.
I am anxious that the Minister should explain why he believes it right to go beyond the functions that are strictly relevant to the Bill. A subjective test is applied: if the Secretary of State believes something to be true, lo and behold, it is. As I have said before, I do not like that. The Minister can have another go at persuading me that I am wrong.
The Minister has no desire to try to persuade the hon. Gentleman, who keeps popping in and out of the Committee, and does not know what we are talking about.
That comment was rather uncalled for.
The participation of hon. Members on both sides of the Committee throughout our deliberations seems to me to have enhanced our discussions. Although I am the first to accept that at times hon. Members may have got the wrong end of the stick, I prefer that to having no discussion at all.
The comments of my hon. Friend the Member for Spelthorne were perfectly reasonable and valid. Opposition Members' dislike of government by statutory instrument, with possible knock-on consequences in the case of subsection (1)(i), is perfectly reasonable and is a legitimate subject for debate. We discussed the matter extensively today when we debated an earlier issue, and it was proper to raise it in relation to subsection (1)(i), but I shall not press the amendment to a Division. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
I beg to move amendment No. 613, in page 246, line 6, leave out subsection (2).
We now turn to a further issue that relates to subsection (2). I should like the Minister to make clear the relationship between information obtained by the director in connection with his functions under part 6, and information that he obtains in connection with his other functions. My intention was not to delete the provision but to highlight it by proposing its deletion so as to enable us to discuss it.
An assumption is made about the compartmentalisation of the director's activities, which, on the basis of what the Minister said earlier, will not happen. The brief will be transferred to the director and he will be told, ''We can't prosecute this chap--can you see what you can do about it?'' He will start collating information in order to find out whether he can bring confiscation proceedings, if previous convictions are involved, or civil recovery proceedings, or--the Minister said that this is likely to be the ultimate fallback position--in the event of his failure to do either of those, tax. Part 6 deals with taxation.
In such circumstances, how will subsection (2) work? Although it properly excludes material that the director has acquired for the purposes of carrying out his Revenue functions, at least some of that information may have been obtained in exercising his powers in connection with the other functions.
What will subsection (2) mean in practice? It is unclear. I suppose that it might be argued that if all that the director ultimately does is impose tax, no information can be disclosed. However, as his examination will be on-going, and as he may want to exchange information with other authorities as he proceeds, I am at a loss to see how it will be possible to extrapolate which information he has obtained for his Revenue functions and which for his other functions. In that case, how is the clause to be interpreted?
The amendment would remove subsection (2). That subsection, together with subsection (3), prohibits the disclosure of any information obtained by the director using his Revenue functions under part 6, except to the Commissioners of Inland Revenue or to the Lord Advocate for the exercise of his functions under part 3. Amendment No. 613 would allow the disclosure of tax information for the purposes set out in clause 423(1).
The Inland Revenue holds particularly sensitive information about people in connection with its tax functions. The director will obtain the same sensitive information when exercising his functions under part 6. Subsections (2) and (3) recognise the delicate nature of that personal information. The Inland Revenue rightly has particular restrictions on the disclosure of the personal information that it holds. It is therefore important that if Revenue information is passed to the director--or obtained by him in his Revenue functions under part 6--restrictions on its disclosure should apply to him, equivalent to those that apply to the Inland Revenue.
The disclosure of tax information obtained by the director when exercising his part 6 powers should be a matter for the Inland Revenue. That is what subsections (2) and (3) achieve. The director can pass information back to the Revenue, which will then decide whether it is within its powers to disclose it. I hope that, if read together, subsections (2) and (3) make that clear. For those reasons, I invite the hon. Gentleman to withdraw his amendment.
I hope that the Minister will forgive me. I understand exactly what is intended, and I do not have any dispute with him. I echo every word that he has said about that matter. However, I have a worry that I do not think has been fully addressed. When the Revenue's function is transferred to the director and he starts an investigation, he may be able to obtain material that, although intended for tax purposes, could arguably be of direct relevance to the various paragraphs of clause 423(1). It may not be that easy to ascertain what information falls into which category. Has any thought has been given to that issue?
Revenue investigators sometimes go out and ask questions. They may ask neighbours or employers for tip-offs, or ask other people for information. The Revenue has an intelligence network. Let us suppose that an investigator acquires information in the course of his questioning, and that the director, in exercising his Revenue functions, obtains information, intending
to use it for the purposes of tax, but the information is such that it could be used for other purposes. Must the director disclose that information only back to the Revenue, or is it information that he can use in another context?
I urge the Minister to think about the issue, because the distinction is not as clear cut as he thinks. Subject to his doing that, I will not press the amendment to a Division. I am trying to be helpful to the director, who might have to resolve a potentially difficult issue. The only possible answer that I can see is that if he believed that he was about to exercise a Revenue function, it would be impossible for him to disclose any information that he might obtain. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
It being Five o'clock, The Chairman proceeded, pursuant to Sessional Order D [30 October 2001] and the Orders of the Committee [13 November 2001, 22 January 2002 and 29 January 2002], to put forthwith the Questions necessary to dispose of the business to be concluded at that time.
Clauses 423 to 427 ordered to stand part of the Bill.
Further consideration adjourned.--[Mrs. McGuire.]
Adjourned accordingly till Tuesday 5 February at half-past Ten o'clock.