Clause 430 - External investigations

Proceeds of Crime Bill – in a Public Bill Committee am 12:15 pm ar 5 Chwefror 2002.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs) 12:15, 5 Chwefror 2002

I beg to move amendment No. 642, in page 250, line 27, leave out paragraph (b).

In this clause, further provision is made for external investigations. Subsection (1) states:

Her Majesty may be Order in Council make—

(a) provisions to enable orders equivalent to those under Part 8 to be made, and warrants equivalent to those under Part 8 to be issued, for the purposes of an external investigations.

I have no trouble with that, but subsection (1)(b) refers to a

provision creating offences in relation to external investigations.

We are being asked to approve a provision that allows the creation of criminal offences in relation to external investigations. It will be made by Order in Council under the negative resolution procedure.

It is noteworthy that the penalties and criminal offences are not limited. It is not a matter of creating offences in relation to external investigations that are limited to or identical to the offences in relation to domestic investigations, although that may be what is intended. However, the way in which the provision is worded allows for the creation of criminal offences of an unlimited character for the purposes of external investigations. For reasons with which the Minister and the Committee may be familiar, that procedure does not commend itself to me as a way of legislating. It is a fairly unfettered power and I shall need a great deal of persuasion to go along with it.

Photo of David Tredinnick David Tredinnick Chair, Statutory Instruments (Joint Committee), Chair, Statutory Instruments (Select Committee), Chair, Statutory Instruments (Select Committee), Chair, Statutory Instruments (Joint Committee)

As Chairman of the Joint Committee on Statutory Instruments, I always view with some concern what could be brought into law through primary legislation that is presented to Committees in such a way. I am pleased that my hon. Friend is pursuing the matter, because it makes members of the Committee aware of an important principle. I hope that the Minister will bear that in mind.

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

I am grateful to my hon. Friend. He has great experience. I served with him on that Committee during the previous Parliament and I know of the frequent problems that arise about unusual use of powers.

If the Minister wants, for the sake of simplification, to have similar offences of obstructing an external investigation to those of obstructing an internal investigation, the sensible action to take, if he wishes to proceed by Order in Council, is to spell that out. However, the Government have taken a short cut that could allow penalties and criminal offences to be created by an Order in Council that could be different to and wider than those that apply to the internal regime. I am sure that the Government do not intend that and that the Minister will reassure the Committee about the intention. However, good intention and good drafting are not necessarily the same thing. I am always prepared to give him brownie points for good intentions, but the drafting of the clause is deficient because the power is far too wide to be spelled out in this way.

Photo of David Wilshire David Wilshire Ceidwadwyr, Spelthorne 12:30, 5 Chwefror 2002

I listened with care to my hon. Friend because, for the reasons that he mentioned, this provision alarms me the most of all those that we have considered today.

If I, as a layman, understand the clause correctly—I am always willing to receive free advice from lawyers about my misunderstandings—it states what my hon. Friend said: an offence may be created by order. That is very strange, and it is stranger because the creation of an offence would relate to something that happened abroad, rather than in this country. I could be mollified to a point if I were told that the provision is necessary for things that happen in this country, but it is strange for such a draconian arrangement to be made for something that occurs abroad. As far as I know, the Bill does not grant that power for something that happens in the United Kingdom.

I can assume that the power is needed only because if something happened abroad that was not classed as an adequate offence in that jurisdiction, the order could make that an offence in this jurisdiction. We could be taking on the burdens of the rest of the world's sloppy draftsmanship, or allowing the Government to help the regimes and jurisdictions that we expressed grave worry about in previous debates. I do not understand why the power is necessary, and I hope that the Minister can reassure me.

Earlier, I was told that I should not have several of my worries because actions must be a crime in this country. I was told that the clause would satisfy my

worries. Following that, my hon. Friend the Member for Henley has probably gone to check that the Elgin marbles are still where they should be. I was told that a statute of limitations—I think that I understand that—would be relevant to something that was nicked from Athens a long time ago, as the Greeks would see it.

I was told not to worry, because the alleged theft of the Elgin marbles happened so long ago that it would not be a crime in this country. However, we are considering a provision that says that if it suits a purpose, we may create an offence of stealing the Elgin marbles several hundred years ago. If necessary, the Government could make anything a crime if it suits their purpose to help a person abroad. That is very strange.

My hon. Friend the Member for Beaconsfield is a kind, generous and gentle man. He says that he is always sure that the Government's intentions are for the best. I come from a different brand of politics and I am not so certain that the Government's intentions are benign on all occasions. I need great reassurance to explain why their intentions will be adequate. If the Minister tells us that there is no intention to misuse the power, it should be written in the Bill. That must be on the record so that courts that are faced with a decision of a high-handed bureaucracy may see that the Government said that they did not intend to use the power in that way.

I would be grateful to know what sort of issues the Government have in mind, because in a previous debate, the Minister of State, Scotland Office, told us that we were not to worry, as the issues were not substantial. We never discovered what they were. I hope that the Under-Secretary will not simply say, ''Don't worry, it's all right, this is fairly minor and will not cause any great upset.'' That will not do. He must say in what sort of circumstances he wishes to invoke the power.

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

I should like to reinforce what my hon. Friends the Members for Beaconsfield and for Spelthorne have said, but I also add a further point. We will listen carefully to what the Minister says, particularly in response to the points made by my hon. Friend the Member for Spelthorne about the Government's intentions. As we know, the Minister's response can be relied on in court because of Pepper v. Hart. However, I believe that we should have more than the reassuring words that he may utter about the intentions. We should include the safeguards in the Bill.

I share the scepticism of my hon. Friend the Member for Spelthorne about the intentions of Governments. I am not making a party political point: whenever a Government give themselves sweeping powers under legislation, we must be cautious about how those powers could be misused by a present or future Government.

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

My hon. Friend is absolutely right. The words ''external investigations'' in subsection (1)(b) are probably deliberately drafted as

an extremely wide catch-all. I think that the term is too wide, and it would be helpful to have a much clearer definition of what is contemplated, as my hon. Friends have rightly said.

Photo of Roger Gale Roger Gale Vice-Chair, Conservative Party

Order. The definition that the hon. Gentleman is looking for is included in clause 432, although it is not certain that we shall get that far this morning, or that the matter will be debated.

Photo of David Tredinnick David Tredinnick Chair, Statutory Instruments (Joint Committee), Chair, Statutory Instruments (Select Committee), Chair, Statutory Instruments (Select Committee), Chair, Statutory Instruments (Joint Committee)

You have come to the rescue, as is often the way with Chairmen, Mr. Gale. I was going to suggest to my hon. Friend that a list might be appropriate, and that we should debate that.

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

As my hon. Friend points out, that may be a subject for debate when, or if, we have a stand part debate on clause 432. I shall not trespass on your good will or the Committee's time, Mr. Gale, but this is a serious matter, and I look forward to hearing whether the Minister offers any reassurance. I am far from satisfied with the drafting.

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

I am not certain, but it seems that we are accused not of making unnecessary, draconian, wide powers, but of poor draftsmanship. We shall see as the debate goes on.

The clause provides for investigative powers to be made for overseas investigation. We intend to provide a scheme broadly similar to that provided for domestic investigation in part 8. In mirroring that part, we intend to replicate the offences of non-compliance with disclosure orders and of prejudicing an investigation. I hope that I have explained the Government's intention, and have fully clarified the need for creating offences as permitted by subsection (1)(b).

It was considered necessary that disclosure orders and customer information orders should oblige people or institutions to comply with certain requirements, and therefore it is appropriate to create sanctions to compel such compliance.

Photo of David Wilshire David Wilshire Ceidwadwyr, Spelthorne

That is helpful, if the Minister is telling us that the provision could be used in cases of non-compliance or hindering an investigation. However, if that is what he has in mind, why does it not say so in the Bill?

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

It does say so—as you pointed out, Mr. Gale—if the Bill is read in its entirety, and if we do not follow the hon. Member for Beaconsfield, as the hon. Member for Spelthorne did. Perhaps the former has wider vision than the latter.

We should not look at subsection (1)(b) in isolation. Under clause 430(1), we can make Orders in Council. Subsection (2) covers areas that may be included and subsection (3) deals with the specific exclusion of disclosure orders. For the definition of ''external investigation'', we will need to turn to clause 432(3). We have no intention of taking the wide remit of which the hon. Gentleman is fearful.

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

I always understood that subsection (1)(b) was governed by the other provisions of the clause, although not necessarily by

only those under subsection (1)(a). One way of looking at the matter is to say that that relates only to offences under part 8, but another approach is to say that it refers to all the provisions about the functions and evidence under part 8. I am not sure that they create criminal offences, but one way of dealing with my objection would be to refer to provisions that create equivalent offences in relation to external investigations. The Minister can see that, worded as it is, the provision could be capable of being widely interpreted.

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

I think that the hon. Gentleman is arguing about drafting. I wish to reassure him about the substantive issues. We expect the same to be applied to external requests as is available under internal investigation powers. It is expected that the offence of prejudicing an investigation as set out under clause 331 will be applied to external requests. We cannot see why there should be a substantive diversion between domestic and external investigations. The same outcome should be achieved. The offence framework that facilitates that should apply equally to domestic and external investigations.

Photo of Mr Paul Stinchcombe Mr Paul Stinchcombe Llafur, Wellingborough

I wonder whether the Minister can clarify statutory interpretation? I may have made a mistake, but is he saying that subsection (1)(b) is qualified by the remaining parts of the clause? An alternative interpretation could be that it is not qualified by subsection (1)(a), because that is discrete, nor by subsection (2),m because that is inclusive and says what may be included within subsections (1)(a) or (b). However, the clause does not state what may be included under subsection (1), but not under subsection (2). How is subsection (1)(b) limited by the remaining parts of the clause?

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department 12:45, 5 Chwefror 2002

My hon. Friend is making the same point that the hon. Member for Beaconsfield made. I want first to satisfy members of the Committee that it is not our intention to create a power for external investigations that is substantially different from that for domestic investigations. Having said that, I wilt under the lawyerly gaze of my hon. Friends and Opposition Members, so I agree to reconsider the drafting to ensure that the hon. Gentleman's fears, reinforced by my hon. Friend, are misplaced. However, if they are founded, I agree to table the necessary amendment.

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

I am grateful for the debate and for the contributions of the hon. Member for Wellingborough. I do not believe that there is a difference in the Committee about what is intended. Reading the provision, even I appreciated that the Government intended that the Order in Council would enable them to create in relation to an external investigation offences that are identical to those created in relation to internal investigations, such as obstruction. I would therefore expect the offences to be identical in scope, wording and penalties. I assume that the intention is not to inflict life imprisonment for a breach of an external investigation, although the fine may be on level 5 on the standard scale in the case of a domestic one.

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

I assure the hon. Gentleman that the intention was not that the penalties should be different from those for the domestic provision.

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

We are on the same lines. I accept the issue of principle. Although it might be argued that Parliament is foolish to give powers to the Executive to create criminal offences—a blanket statement—an argument of convenience might suggest that, as we have already discussed penalties for internal offences, we should not object to the same penalties and offences being created for external offences. However, we have had no opportunity to reassure ourselves about whether some elements of external investigations might be different from internal ones, which would affect the criminalisation of certain activities. I hope that the Minister understands my point. We have had no chance to focus on that.

That said, if that is the intention, the wording is defective. First, subsection (1)(b) does not restrict external investigation offences and penalties to the same as apply in an internal investigation. Secondly, as the hon. Member for Wellingborough cogently argued, both he and I have a similar doubt about the extent to which subsection (1)(b) is restricted by subsection (1)(a) or any other provision in the clause.

Photo of Mr Paul Stinchcombe Mr Paul Stinchcombe Llafur, Wellingborough

In fact, I have very little doubt. The provision seems completely unqualified by the other provisions.

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

The hon. Gentleman has an area of expertise that I have been trying to acquire during our proceedings on the Bill and that I would not pretend to have had before. I was satisfied in my mind that paragraph (b) was not restricted by paragraph (a), but I had open in my mind whether it might be restricted by the totality of the clause. The fact that he thinks that it is not is a compelling argument that that is a further area of defect that needs to be examined.

I am left in a bit of a quandary. The Minister has, I think, undertaken to reconsider the matter. In a conciliatory spirit, that should be a good argument for withdrawing the amendment. Equally, however, I sometimes have slight anxieties that I may be conceding too much and failing to highlight criticism of what is defective.

Mr. Wilshire rose—

Photo of David Wilshire David Wilshire Ceidwadwyr, Spelthorne

I have come this far without giving instructions to anyone, and I have not the slightest intention of doing so now. I was merely going to suggest to my hon. Friend that, although I had been persuaded by him that it was absolutely right to let the Minister get on with it, if the hon. Member for Wellingborough is saying that the provision is even worse that we thought, I wonder what might happen on Report if we do not put down a marker now. If the Minister were to come back and say that it is not sloppy or draconian, and that he is not going to do anything about it, will we have missed the opportunity to make it clear that we do not accept it?

Photo of Mr Paul Stinchcombe Mr Paul Stinchcombe Llafur, Wellingborough

I urge the hon. Gentleman to accept the Minister's offer. The matter must be carefully examined, and the Minister has undertaken to do that. I do not want my off-the-cuff legal analysis to be taken as gospel. Given the Minister's good will, his offer should be accepted.

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

The Minister should not withdraw his good will if I decide to press the amendment to a Division. I will press it to a Division, as that will establish the Opposition's point of view, until he returns with a rectification. If he fails to amend the provision, I will table further amendments that will seek, not to repeat this amendment, but to put right what is wrong with the clause.

Question put, That the amendment be made:—

The Committee divided: Ayes 7, Noes 10.

Rhif adran 53 Adults Abused in Childhood — Clause 430 - External investigations

Ie: 7 MPs

Na: 10 MPs

Ie: A-Z fesul cyfenw

Na: A-Z fesul cyfenw

Question accordingly negatived.

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

Photo of David Wilshire David Wilshire Ceidwadwyr, Spelthorne

With regard to subsection (2)(b) in particular, the issue of the functions of the Secretary of State is raised again. I will not discuss it yet again, although I am not satisfied with the responses that have been given.

If I understand subsection (1)(a) correctly, it is intended to make our warrants usable in respect of foreign activities. It allows for the making of,

provisions to enable orders equivalent to those under Part 8 to be made, and warrants equivalent to those under Part 8 to be issued, for the purposes of an external investigation.

It appears to deal with a foreign jurisdiction's defective powers. I would normally expect a foreign jurisdiction to seek to extradite someone, if it wished to arrest him. Subsection (1) appears to address situations in which a foreign jurisdiction does not have sufficient evidence to extradite people, by allowing our warrants to be made exercisable, so that we can arrest them in this country, and keep them on remand for as long as we choose—in respect of something that has happened abroad.

If that is the case—if we are now being asked to approve arrest powers to back up foreign jurisdictions of the dodgy variety—that is another reason why this entire part of the Bill concerns me. The Government usually try to reassure me with the ''Don't worry'' argument, but I wish to know why they imagine that they need those powers. What situation will we be in when it is necessary to have an order pertaining to arrest warrants and keeping people in custody in this country for a foreign purpose? Why do we need a power to help other people?

I am worried about subsection (3). It is extraordinary, and I am disappointed that the hon. Member for Glasgow, Pollok is not here, because he would have put the argument far more eloquently than I can. I hope that he has recovered from the nasty thrashing that his country's rugby team suffered.

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

I should defend the honour of my fellow rugby player. Although the Minister has been discreet, I must reveal that the hon. Member for Glasgow, Pollok is representing Parliament in Japan this week.

Photo of David Wilshire David Wilshire Ceidwadwyr, Spelthorne

I am not sure what to make of that. If a person has to go that far away to get over the defeat, the match must have been a bad blow to his morale and pride. If the hon. Gentleman were here, I imagine that he would have similar thoughts to mine. He has always argued that we should not be soft on the drug dealers or the money launderers. They should be the real targets. They do huge damage to his constituency and elsewhere.

The provision states:

But an Order under this section must not provide for a disclosure order to be made for the purposes of an external investigation into whether a money laundering offence has been committed.

If ever there were an offence that ought to be subject to external co-operation, it is money laundering. Our debates have been about whether a person should carry £25,000 in his pocket. I have been told repeatedly that the time to remove the proceeds of crime from such serious criminals is at the money laundering stage. That is the point at which the money goes from being illegal to legitimate. For the past 38 sittings, money laundering has been at the heart of our debate. However, subsection (3) provides a specific exclusion, and the one thing that matters most to the hon. Member for Glasgow, Pollok cannot be the subject of international co-operation. The provision is extraordinary. I look forward with great enthusiasm to hearing the Minister's explanation.

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

On the hon. Gentleman's first point, I remind him that we are discussing the Proceeds of Crime Bill, not a crime Bill. We are talking not about extradition or court cases for criminality in other countries but about the investigation of the proceeds

of crime in response to external requests. We are not discussing anything else.

As for the unavailability of a disclosure order, the hon. Gentleman said that money laundering was at the heart of our discussions during the past 38 sittings. It was not. It is a specific part of the Bill. He may recall that we have put an exclusive ring around the use of disclosure orders and the only person who has them as a tool is the director of the agency. He is not involved in the investigation of money laundering. Disclosure orders are not available in the investigation of money laundering domestically, and thus are not appropriate for use in the investigation of money laundering in response to an external request.

Question put and agreed to.

Clause 430 ordered to stand part of the Bill.

Clause 431 ordered to stand part of the Bill.