Proceeds of Crime Bill

Public Bill Committee, 29 January 2002.

Proceeds of Crime Bill

Bob Ainsworth (Labour, Coventry North East)

I beg to move,

That, in the Programming Order of the Committee of 13 November 2001, the Table be further amended as follows—

(1) in the second column in respect of the 34th sitting by leaving out the words there printed and inserting ''Part 8'';

(2) in the third column in respect of the 34th sitting by leaving out ''1 p.m.'';

(3) for the second and third columns in respect of the 35th sitting substitute—

''Part 8 (so far as not previously concluded), New Clauses and New Schedules relating to Part 86 p.m. Part 9, New Clauses and New Schedules relating to Part 9 7.30 p.m.''

As you are aware, Mr. O'Brien, the Programming Sub-Committee met earlier this morning. A draft resolution has been agreed by representatives of the three political parties in Committee, which pushes back the knife that is due to fall on our deliberations at lunchtime to 6 pm, so that we can continue to discuss part 8 until 6 pm, thus, leaving one and a half hours to discuss part 9.

Mr. David Wilshire (Spelthorne): We are grateful for this opportunity to give the Bill better consideration than it would otherwise have had.

Question put and agreed to.

Bill O'Brien (Labour, Normanton)

We shall now continue our consideration of the Bill.

Clause 330 ordered to stand part of the Bill.

Clause 331 - Offences of prejudicing investigation

Dominic Grieve (Conservative, Beaconsfield)

I shall keep my remarks brief. We have a marathon sitting to get through, even though the finishing post has been moved to 6 pm. I am grateful to the Minister and the Government Whip for the way in which we have made such adjustments as time has required.

We are now dealing with investigations under part 8. Clause 331 is about offences of prejudicing investigation, and subsection (1) states:

''This section applies if a person knows or suspects that an appropriate officer or . . . a proper person is acting . . . in connection with a confiscation investigation, a civil recovery investigation or a money laundering investigation which is being or is about to be conducted.''

Mr. Paul Stinchcombe (Wellingborough): The hon. Gentleman has just mentioned a civil recovery investigation. Given that that would have to be an investigation into unlawful conduct, not criminal conduct, would there not be a problem with definitions?

Dominic Grieve (Conservative, Beaconsfield)

The hon. Gentleman makes a good point. I shall return to it in a moment. The specific problem that hit me when I first read the provision was that it includes a ''money laundering investigation''. How is that intended to dovetail with the offence of tipping off under clause 325? We are creating two almost identical offences, the only difference being that the scope of the offences that can be committed under clause 331 is slightly wider.

I have sometimes described the Bill as ''draconian'', and its intention certainly seems to be to criminalise anyone who transgresses, right, left and centre. Is there not a little overkill in the clause, in that it refers to two offences, one under the money-laundering provisions and one under the investigations provisions, given that one could be subsumed into the other? It is undesirable for Parliament to pass a plethora of criminal sanctions when only one may be necessary.

The hon. Member for Wellingborough (Mr. Stinchcombe) has made a good point. Perhaps we should also consider whether the attempt at a catch-all provision for all three investigations reads properly. The Minister may wish to take on board that point, which did not occur to me when I first read the clause; it may merit consideration.

I should be grateful if the Minister would explain how the Government intend the clause to work, compared with clause 325. This is a probing amendment; I thought that the best way to facilitate our discussions would be to suggest deleting the reference to money laundering, and it would also enable the Minister to learn a little beforehand about the point that I was trying to raise.

Bob Ainsworth (Labour, Coventry North East)

As we have said previously, the money-laundering provisions in part 7 consolidate, simplify and expand the existing provisions. Current legislation makes a distinction between laundering the proceeds of drug crime and laundering the proceeds of other crimes. That distinction has now been removed. The money-laundering offences in the Bill bite on the proceeds of all criminal conduct. In bringing about that consolidation, we have taken into account the fact that section 58 of the Drug Trafficking Act 1994, the current legislation, makes it an offence to prejudice an investigation into drug trafficking when an application has been made for a production order or a search and seizure warrant.

Section 53 of the 1994 Act contains a general tipping-off offence for those who know or suspect that a constable is acting, or proposing to act, in an investigation that is, or is about to be, conducted into money laundering. It is also an offence for a person who knows or suspects that a suspicious transaction disclosure has been made to the police to disclose information likely to prejudice an investigation. Section 93D of the Criminal Justice Act 1988 is similar

to section 53 of the 1994 Act. We captured the thrust of those provisions in clause 325, which deals with tipping-off disclosures made under part 7, and for part 8 in clause 331, which deals more generally with prejudicing an investigation.

There is a good reason to have separate offences of prejudicing an investigation and of tipping-off disclosures made under part 7. Tipping off under clause 325 applies only when a disclosure is made that falls under clause 327 or 328. Furthermore, as the offence relates to making a disclosure, that could be before the law enforcement authorities undertake or even contemplate an investigation. The offence of prejudicing an investigation might not be sufficient to cover that situation.

Conversely, the offence of prejudicing an investigation might sometimes cover ground that is not covered by the tipping-off offence. For example, if a person knew that an investigation into money laundering was going on because an account-monitoring order had been made, there would not have been a disclosure under clause 325 and he would not have committed a tipping-off offence by telling the subject of the investigation. The amendment would remove one of the important safeguards for the money-laundering provisions.

The offence of prejudicing a money laundering investigation is a significant support in ensuring the success of an investigation. I hope that I have explained that it would not be possible to rely on only the tipping-off offence in clause 325, because in most cases of applications for the powers specified in part 8, there will have been no disclosure under part 7.

I hope that that shows the hon. Gentleman that there is no deliberate duplication, and that the power is necessary, in addition to those in the tipping-off clause.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister for providing that clarification, which wholly satisfies me. I wanted something on the record about the relationship between the offences in the two clauses.

I have had the chance to examine further the point made by the hon. Member for Wellingborough, and his anxiety is probably not well founded. The clause refers to investigations, which could apply to a civil recovery investigation as much as to any other. Did the hon. Gentleman try to raise another aspect that I did not understand?

Paul Stinchcombe (Labour, Wellingborough)

We discussed the unusual case of the different definition of criminal conduct as ''unlawful conduct'' in certain clauses. Clause 330(1) carries that through because it states:

''a confiscation investigation is an investigation into . . . criminal conduct''.

However, subsection (2) mentions property rather than conduct itself. That is an unusual consequence of the unusual approach in the Bill.

Dominic Grieve (Conservative, Beaconsfield)

I agree with the hon. Gentleman. He will remember that we highlighted that matter at length when we discussed the civil recovery provisions, and I expressed my misgivings about the whole approach.

My difficulty is that further discussion would reopen an issue that we debated earlier—although I shall be happy if the Minister continues to think about it.

After hearing the hon. Gentleman's point, I wondered whether I had missed something that made clause 331 unworkable or difficult. However, I do not think that I have, so I did not pursue that point further. I am grateful to him for raising the matter, because I continue to be worried about it. I am not allowed to reopen an old debate, although if those who advise me continue to have disquiet on the subject, we may return to it on Report.

I am grateful to the Minister for explaining the relationship between the two offences and for highlighting the fact that the provision originates from the 1994 legislation. Setting out the different offences in this way is not the healthiest way to proceed, but I see the point of it.

Vera Baird (Labour, Redcar)

Before the hon. Gentleman withdraws the amendment, I seek clarification. The Minister put forward the case for the two offences, but I wish to raise two points.

The tipping-off provisions in clause 325 include the caveat that an offence will be committed if a disclosure is likely to prejudice a subsequent investigation. Will there not inevitably be considerable overlap between the two types of criminality in the case of a disclosure that leads to an investigation? A person could be charged under clause 325 or clause 331.

It is not necessary to pursue my second point straight away, but the offence of prejudicing an investigation under clause 331 seems exactly like a classic case of perverting the course of justice. Consequently that provision is unnecessary, and such duplication should be avoided if possible.

Bill O'Brien (Labour, Normanton)

Order. The hon. Lady is making an intervention, so I ask her to draw it to a close.

Dominic Grieve (Conservative, Beaconsfield)

Instead, I shall bring my remarks to a close, Mr. O'Brien, and allow the hon. Lady to say a few more words before I formally withdraw the amendment.

Vera Baird (Labour, Redcar)

Very gallant.

Nick Hawkins (Conservative, Surrey Heath)

Very sensible, too.

Vera Baird (Labour, Redcar)

Much more that than the former, I am sure. Thank you for that assistance with procedure, Mr. O'Brien.

I wonder whether the Government believe that they need the clause in addition to the provisions on perverting the course of justice because the provision applies to a civil recovery investigation, too, which is expressly not intended to involve criminal proceedings, and consequently might not fall so clearly within the ambit of perverting the course of justice. If that is the answer, I understand: the provision in the clause is for the avoidance of doubt. However, if that is not the reason, I suggest that duplication should be avoided if possible, and I ask why we need the clause in addition to the common law offence of perverting the course of justice.

Bob Ainsworth (Labour, Coventry North East)

I do not deny that there is some overlap between clauses 325 and 331. However, in such cases it is important to cover all eventualities. I shall investigate whether perverting the course of justice would cover all the circumstances now covered in clause 331, and I shall return to my hon. Friend as soon as possible.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the hon. Lady. As we have considered the clause, other points have arisen. To pick up the comments of the hon. Member for Wellingborough (Mr. Stinchcombe), I might add that civil recovery has a slightly odd status that clearly does not constitute criminal proceedings—so a person would not prejudice a criminal investigation by his action. However, it is possible to pervert the course of justice in civil investigations. Indeed, a former Member of this House got into considerable difficulty and had to serve a term of imprisonment for doing precisely that. The offence is not confined to criminal investigation.

I hope that the Minister will take on board the points that have been made. For present purposes, and having highlighted those matters, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 547, in page 192, line 39, leave out 'a view to' and insert 'the intention of'.

The clause raises the issue of exemption, and the question of legal professional privilege. A disclosure falls within the clause if it is a disclosure to

''a client of the professional legal adviser in connection with the giving by the adviser of legal advice''

''to any person in connection with legal proceedings or contemplated legal proceedings.''

The clause then uses a phrase that I do not remember having considered previously—

''with a view to furthering a criminal purpose.''

Before I allowed the issue to disappear completely, it occurred to me that although the word ''view'' has appeared previously in the Bill, it is slightly odd. What does ''with a view to'' doing something mean? Is not the word ''intention'' better? I accept that if we were to amend it in this case, for consistency's sake we would have to amend it in earlier instances in the Bill, but it suddenly struck me as I read the clause that I should ask about the phrase ''with a view to''. It troubles me slightly, because I am not 100 per cent. sure of the definition, and what it is designed to mean.

Nick Hawkins (Conservative, Surrey Heath)

As my hon. Friend knows, I agree with him. Does he agree with me that if the Government and their advisers are persuaded by his argument and mine that it would be better to use a clearer phrase than ''with a view to'', nothing would prevent the Government from returning with a set of amendments on Report or in another place to ensure that the terminology is consistent throughout the Bill? Does he also agree that at every point in the Bill it

would be far better to use words that are more familiar to the law, as we have repeatedly said in discussing other issues?

Dominic Grieve (Conservative, Beaconsfield)

As I said, there may be a good reason that I have not understood. However, when I read the Bill I suddenly saw something that struck me as slightly odd, which I may have missed on the several previous occasions that I read it. I just thought that I would highlight it and see what the Minister has to say.

Bob Ainsworth (Labour, Coventry North East)

I think that I can help the hon. Gentleman. Worryingly, I also agree with the hon. Member for Surrey Heath (Mr. Hawkins). Not only is the amendment acceptable, it is helpful. I ask the Committee to accept the amendment, and I undertake to look through the Bill and amend the wording wherever it arises to ensure consistency and accuracy.

Dominic Grieve (Conservative, Beaconsfield)

I am much obliged to the Minister. If he is happy, so am I.

Amendment agreed to.

Clause 331, as amended, ordered to stand part of the Bill.

Clause 332 - Judges

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 548, in page 193, line 17 leave out 'Circuit Judge' and insert

'judge of the Crown Court.'.

I am so taken aback by the Minister's acceptance of amendment No. 547 that I have mislaid my notes.

Nick Hawkins (Conservative, Surrey Heath)

May I help my hon. Friend by reminding him that this amendment deals with the distinction between a circuit judge and a judge of the Crown court?

Dominic Grieve (Conservative, Beaconsfield)

I am extremely grateful to my hon. Friend for his assistance.

Clause 332 says that applications in relation to a confiscation investigation must be made to a circuit judge. From our earlier debate, I understood that it was intended that the Crown court should deal with such matters. I accept that, as we said at an early stage of the proceedings, it is necessary for the judiciary who deal with the applications to be trained, because they may be unfamiliar with that area of the law.

However, by using the term ''Circuit Judge'', the Minister has missed an opportunity. First, there are likely to be recorders sitting in the Crown court who, by the nature of their practice, may have considerable expertise in that area. The consequence of the wording is that they would be deprived of the opportunity of sitting to hear and determine applications.

Secondly, on occasion High Court judges sit in the Crown court. We may not be certain how the judiciary will operate in criminal matters post-Auld, but they seem likely to continue along present lines. Red judges, who have gained considerable expertise in relevant fields before reaching the bench, will sometimes sit in the Crown court. Although their rulings and interpretations do not constitute case law, we know

from Crown court experience that transcripts are often produced and freely circulated among practitioners. Such transcripts are of great assistance subsequently, especially if the judgment of the person making the ruling carries weight, and he is known to be knowledgeable in his field.

The amendment seeks to avoid depriving society of the possible input in the Crown court of individuals with something to offer. Might the Government accept the amendment, or reconsider the idea at a later stage? I seek to be helpful.

Nick Hawkins (Conservative, Surrey Heath)

Does my hon. Friend agree that his point about including recorders is especially pertinent in connection with people known to members of the Committee? Labour Members have expressed concern about the use of solicitor recorders. One of the most distinguished of those is my hon. Friend the Member for Woking (Mr. Malins), who is involved in the debate now taking place in Westminster Hall, where he is leading the charge in the attack on the Government's failing policy on asylum seekers.

Dominic Grieve (Conservative, Beaconsfield)

Undoubtedly there will be recorders in the Crown court who have a great deal of experience and expertise in that area. It would be foolish to deprive ourselves of that. Listing officers in the Crown court are adept at assessing whether a person is competent or willing to hear an application in matters that are outside their normal discipline, and they will act accordingly. I cannot see that there is a huge problem, and there may well be considerable benefits.

Bob Ainsworth (Labour, Coventry North East)

I thank the hon. Gentleman for his comments, but his stated intention would not be achieved by the amendment. Therefore I cannot accept it. It would require that all applications for the use of the powers in England and Wales in respect of confiscation and money laundering investigations, including applications to vary and discharge, made in open court.

I can state explicitly that applications may be made to a circuit judge in the Crown court in England and Wales, so that applications can be heard ex parte. There are otherwise no facilities for the Crown court to hear ex parte proceedings. That makes it easier to submit out-of-hours applications. The provision follows the precedent of provisions in the present confiscation legislation and in the Police and Criminal Evidence Act 1984. Having said that, I am not sure that that is the hon. Gentleman's motive. I have asked whether we are restricting appropriate people who might be drawn in by a different form of words, and I am assured that the bread-and-butter work of the Crown court is carried out by circuit judges. That explains the reference to the circuit judge, both in previous legislation and in the Bill.

If the hon. Gentleman is referring to existing expertise, it may be worth considering whether it is appropriate to use it. If changing the wording will enable expertise to be used, I assure him that I will examine that point further. However, that would not be the effect of his amendment.

Mr. Hawkins: The Minister is being enormously helpful to my hon. Friend and me in accepting the spirit of our intention. When making his analysis, will he accept that there is nothing unusual about recorders hearing ex parte matters in their chambers? It is commonplace for recorders—whether members of the Bar or solicitors—to have all sorts of discussions in chambers when a case requires. It would be a helpful use of what is known as ''judge power'', if the Minister allowed recorders to be included. Although he does not accept the precise way in which we wished to achieve that, perhaps, as he helpfully suggested, he will accept the spirit of the amendment.

Bob Ainsworth (Labour, Coventry North East)

That is what I was saying I was happy to consider—but I ask the hon. Gentleman to accept that there are reasons for the particular wording of the provision. We need to understand the consequences of any changes that we make. As I have said, if the present wording would rule out the participation in those decisions of some people with expertise, and if we can include them—and nothing more than that—by using other words, we would consider doing so.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister for that response, but I am somewhat mystified by his objection to the amendment. It would not in any way preclude the rules of court enabling the applications to be made ex parte. The hon. Gentleman may wish to raise the matter with his advisers, and I defer to him, and to them, with regard to it.

The important thing is the intention to bring those other people in, because that would be beneficial. I would be content if that could be achieved by employing a form of words different from those in my amendment. However, I do not understand why my form of words should have the unintended consequence that has been suggested, and I ask the Minister and his advisers to reconsider whether that would be the case.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 332 ordered to stand part of the Bill.

Clauses 333 and 334 ordered to stand part of the Bill.

Clause 335 - Requirements for making of production order

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 549, in page 194, line 33, at end add—

'(5) There must be reasonable grounds for believing that it is in the public interest having regard—

(a) to the benefit likely to accrue to the investigation if the material is obtained

(b) to the circumstances under which the person in possession of the material holds it.'.

Bill O'Brien (Labour, Normanton)

With this we may discuss the following amendments: No. 554, in clause 342, page 199, line 5, at end insert—

'(d) that there are reasonable grounds for believing that it is in the public interest having regard to—

(i) the benefit likely to accrue to the investigation if the material is obtained;

(ii) the circumstances under which the person in possession of the material holds it.'.

No. 559, in clause 347, page 201, line 30, at end add—

'(4)There must be reasonable grounds for believing that it is in the public interest having regard to—

(a) the benefit likely to accrue to the investigation if the information is obtained;

(b) the circumstances under which the person in possession of the information holds it.'.

No. 562, in clause 360, page 208, line 31, at end add—

'(6)There must be reasonable grounds for believing that it is in the public interest having regard to—

(a) the benefit likely to accrue to the investigation if the information is obtained;

(b) the circumstances under which the person in possession of the information holds it.'.

Dominic Grieve (Conservative, Beaconsfield)

The clause sets out the requirements for the making of a production order. They demand that certain ground rules should be observed. For instance, there must be reasonable grounds for suspecting that,

''in the case of a confiscation investigation, the person the application for the order specifies as being subject to the investigation has benefited from his criminal conduct''.

There must also be

''reasonable grounds for believing that the person the application specifies as appearing to be in possession or control of the material so specified is in possession or control of it.''

Those are serious powers. I am sure that the Minister would readily accept that, potentially, they involve a substantial interference with individual rights that are upheld under our law. For someone to knock on one's door, make demands and require answers to questions is an interference with the liberty of the subject that should be carried out only on good and sufficient grounds.

The Drug Trafficking Act 1994—the original legislation on the matter under discussion—contained public interest protection clauses identical to those that I wish the Bill to include. They are that there must be

''reasonable grounds for believing that it is in the public interest having regard to—

(i) the benefit likely to accrue to the investigation if the material is obtained;

(ii) the circumstances under which the person in possession of the material holds it.'.

In the explanatory notes, the Bill's draftsman informs us that because the Human Rights Act 1998

''requires a judge not to act in a way that is incompatible with Convention rights'',

it is no longer necessary for the legislation to contain the public interest test, and that it has therefore been deleted. That is a major change from the way in which other relevant legislation has been framed.

I highlight that alteration because I am not persuaded that the two tests are identical. The public interest test that the earlier legislation required to be fulfilled is, by its nature, likely to be higher than the balancing act of proportionality that would have to made under human rights legislation.

Ever since the introduction of the Human Rights Act, I have been troubled by something that I regard as an unintended consequence. As the Committee may be aware, I was one of the few members of my party to show considerable understanding of the intentions behind the Human Rights Act 1998. However, since its introduction, which provided what I always believed would be a baseline—the safety net—on which the structures of justice would be built, I have been concerned because all too often, that baseline has been used as the norm. During that process, various safeguards that were previously regarded as absolutely normal under the law have suddenly been put in the dustbin because we have been assured that they are no longer necessary to ensure that our legislation is compatible with convention rights. That is why I thought it right to highlight the matter by reinserting the public interest provisions.

This is not a probing amendment. I am open to persuasion, but I shall need a lot of persuasion to believe that public interest provisions can safely be jettisoned because the Human Rights Act replaces them. Although I do not claim great expertise on that Act, it causes me considerable concern to see such measures discarded.

Norman Baker (Liberal Democrat, Lewes)

I draw the hon. Gentleman's attention to the front of the Bill, which states:

''In my view the provisions of the Proceeds of Crime Bill are compatible with the Convention rights.''

Surely each provision should be deemed to be so compatible rather than deleting other provisions, thereby relying on a backstop in case of any challenge.

Dominic Grieve (Conservative, Beaconsfield)

I agree. My difficulty is that on several occasions since the passing of the Human Rights Act we have been told that, although different safeguards that were previously deemed important under English law are going out of the window, the new legislation is still compatible with the Human Rights Act. As the hon. Gentleman knows, people have expressed grave misgivings about the judicial systems of some countries that are signatories to the European convention on human rights. It had not crossed my mind that we were about to reduce ourselves to the lowest common denominator of compliance with the human rights convention, and it was to be the central pillar of our legal system. I have always thought that we should be doing rather better than that. Indeed, in the past and in many areas of our law, we have done considerably better than that.

Paul Stinchcombe (Labour, Wellingborough)

An alternative analysis could be that through incorporation of the European convention on human rights, we have introduced substantive rights so that other previous protections are no longer necessary. How did the hon. Gentleman reach his analysis?

Dominic Grieve (Conservative, Beaconsfield)

I have made the position clear: I said that I was open to persuasion by the Minister that the protections afforded under the Human Rights Act—in its text and in the way in which it has been interpreted—are such that the safeguards of the public

interest argument are no longer required. If the Minister can persuade me that protection under the Human Rights Act is greater than that provided by the public interest tests, I shall have no difficulty in accepting the clause. However, if he cannot do that, I want the Committee to consider why it was decided to remove the public interest requirements.

I shall now mention another matter that I should like to explore with the Committee, but to which I do not have an immediate answer. The test under the Human Rights Act may be slightly dissimilar to the public interest test, so it could be argued that the two protections should be included, because one complements the other, and they should be allowed to interact. I hope that the Committee can have a brief discussion of such matters, and the best thing now would be to give the Minister the opportunity to reply and give his officials' view of the background.

Stephen Hesford (Labour, Wirral West)

Subsection (4) should be read in the light of the preceding subsections in the clause. Is not the hon. Gentleman's argument too pernickety? It is clear if one reads the clause that a production order must be made on the grounds of public interest. Is that not inherent in the clause? If that were not the case, an application for a production order would not get past first base.

Dominic Grieve (Conservative, Beaconsfield)

When I respond to interventions it is sometimes difficult to find my place in my notes. I have compared the clauses with the pre-existing provisions, and I may be wrong, but my recollection is that in the previous legislation the words ''substantial value'', as used in subsection (4), were married with the public interest test. I am now glancing at section 55 of the Drug Trafficking Act 1994, and can see that the two are put together there. Clause 335(4), which the hon. Gentleman rightly highlighted, is not a substitute for the public interest test contained in the 1994 Act. Section 55(4) of the 1994 Act states:

''(b) that there are reasonable grounds for suspecting that the material to which the application relates—

(i) is likely to be of substantial value (whether by itself or together with other material) to the investigation for the purpose of which the application is made; and

(ii) does not consist of or include items subject to legal privilege or excluded material; and

(c) that there are reasonable grounds for believing that it is in the public interest, having regard—

(i) to the benefit likely to accrue to the investigation if the material is obtained, and

(ii) to the circumstances under which the person in possession of the material holds it,

that the material should be produced or that access to it should be given.''

I have looked at the old legislation and I do not think that clause 335(4) alters my point. I accept that the Human Rights Act 1998 might alter the necessity for the subsection that I am trying to re-insert, but I should like to be persuaded of that.

Paul Stinchcombe (Labour, Wellingborough)

I wonder whether one difference between the hon. Gentleman's formulation and the normal application of human rights law might be that, under his formulation—the historic formulation—

there have to be ''reasonable grounds'' for the judge to include certain matters, whereas under the human rights formulation, he would have to decide whether the benefit was proportionate to the intrusion.

Dominic Grieve (Conservative, Beaconsfield)

The hon. Gentleman may be right, in which case he has made a good argument for not putting the provisions back in. He may wish to develop that in a contribution to the Committee. The best I can do now is listen to what the Minister—or the officials, through the Minister—have to say on the point. This is an important subject, and I do not want the safeguards that we have previously enjoyed to be reduced by the invocation of the Human Rights Act 1998, which I have frequently seen as only a fail-safe device.

Norman Baker (Liberal Democrat, Lewes)

The hon. Gentleman has raised an important point that deserves a full reply. If it were possible, he would probably exchange his earlier victory on a small point for a different victory on this more substantial point. My worry is the suggestion—if it is true; we will hear from the Minister in a minute, although judging by the notes, it may well be the case—that the protections afforded in previous legislation are not replicated in the Bill because there is an assumption that the Human Rights Act supplies the protection. That would be worrying because on the front of the Bill, as with all legislation these days, there is a statement that the provisions in the Bill are compatible with convention rights.

Each Bill that comes before the House should contain the necessary protections and compatibility with human rights legislation, rather than relying on a subsequent application of the Human Rights Act to remedy any defects in it. It is unfortunate if the Minister is proposing that that should be the case with the Bill. There is a point of principle: we cannot assume that if protections are afforded by other legislation, they need not be present in the Bill. That would mean that legislation brought before the House need not be compatible with human rights legislation, and we would have to rely on the backstop afterwards.

We have heard about the overlap between clauses 325 and 331, and the reasons why that is necessary. The Minister accepted that there was duplication, and made a convincing case that both clauses were needed, as belt and braces. It is also important to have a belt-and-braces approach here, to ensure that that we still have the protection afforded in previous legislation, to which the hon. Member for Beaconsfield (Mr. Grieve) referred, as well as the protection under the Human Rights Act. Each Bill should be self-contained and compatible with human rights legislation. The protections that would be afforded by the amendment may not be exactly the same as those afforded by the Human Rights Act.

Theoretically, a future Government could repeal the Human Rights Act and withdraw from the convention. Many of the right hon. and hon. Friends of the hon. Member for Beaconsfield would wish to go down that road. [Interruption.] I accept that the hon. Gentleman himself would not want that, but some of his colleagues would. It would be unfortunate to rely

on the presence of the Human Rights Act as a backstop to fill the holes in legislation, rather than putting safeguards in the Bill. If the Human Rights Act were repealed, individual Acts would not contain the safeguards that hon. Members want. That is a further reason why a belt-and-braces approach is important.

If the Minister does not dispute the amendment and believes that the conditions that it sets out are appropriate—as they were in previous legislation—there is no reason why they should not be included in the Bill. If there is an overlap with human rights legislation, so what? What is the problem with that? It is better to have proper safeguards in each Bill, rather than allowing the opening of a possible lacuna that could present difficulties later. I hope that the Minister will consider the amendment.

Bob Ainsworth (Labour, Coventry North East)

I am glad that the hon. Member for Beaconsfield has raised this important issue, although I am struggling to follow some of the arguments of the hon. Member for Lewes (Norman Baker) in support of the amendment.

The amendment would insert a provision that is already in existing legislation. It replicates section 55(4)(c) of the Drug Trafficking Act 1994, which deals with production orders. I understand the worries that lie behind the amendment, but I assure the Committee that its effect is already achieved in the Bill. The public interest test in relation to the investigation orders will be retained, and will apply to the new orders. That is because the Human Rights Act 1998 requires that a judge must not act in a way that is incompatible with convention rights. For example, an appropriate officer must satisfy a judge that any infringement of, say, a person's right to privacy under article 8 of the convention is proportionate to the benefit to be gained from making an order. As the Human Rights Act is now enshrined in our domestic law, there is no need to replicate its provisions and its effect in new legislation. We therefore think it unnecessary to retain the current public interest statement.

The issue goes wider than the Bill. We believe that wider and undesirable implications would flow from the amendment. It would suggest that whenever a human rights issue arises in legislation, we need to specify a test in the legislation, rather than relying on the Human Rights Act. That is the reverse of the argument of the hon. Member for Lewes. Inserting such a provision at every relevant point in legislation would be logistically difficult to achieve comprehensively, and would result in casting uncertainty on any legislation in which a specific human rights provision does not appear.

As a matter of policy, the Government are content that the Human Rights Act achieves throughout the statute book what the hon. Gentleman is trying to achieve in the Bill through the amendment. Judges are already legally bound not to act in a way that is incompatible with convention rights. That, too, is the reverse of the argument advanced by the hon. Member for Lewes.

In the Bill, as in all legislation when it is appropriate that such a statement be made, we have made a commitment that it is compatible with the Human

Rights Act. We can do nothing in legislation to prevent, in every imaginable circumstance, someone from trying to use the powers in a way that is incompatible with the Human Rights Act. Obviously, such action would need to be challenged, but to suggest that we need to cover every circumstance, wherever it might arise, is more likely to lead to the sort of lacunae that the hon. Gentleman suggests that we might be opening up.

The hon. Member for Beaconsfield asked whether I could assure him that the protection given under the Human Rights Act was greater than that given by the current public interest statement. I do not suggest that it is, but we see no discernible difference between the protection given under the Human Rights Act and that given by the public interest statement. The balancing that will be required in making decisions about proportionality will be almost exactly the same as would be required under the public interest test.

We believe that the circumstances are covered, and that the way to ensure that they are covered comprehensively is to accept that the Human Rights Act applies to all our legislation, and statements appear on the front of Bills to that effect. To move away from that presents the danger of doing exactly the reverse of what the hon. Member for Lewes is arguing.

Norman Baker (Liberal Democrat, Lewes)

The Minister seems to be saying that the Bill as drafted is compatible with human rights legislation only in so far as a separate measure exists to govern it, and that in itself, as a self-contained measure, it is not compatible with human rights legislation. The safeguards that have hitherto been provided in legislation, which he says would be difficult to insert—although we seem to have managed since time immemorial to insert them—are now being deleted from legislation.

Provisions such as those that the hon. Member for Beaconsfield has referred to are now being deleted. This an important philosophical point. The Minister says that as a self-contained piece of legislation, the Bill is not compatible with human rights—that it is compatible only if a further piece of legislation, external to it, is applied.

Bob Ainsworth (Labour, Coventry North East)

How am I saying that? Is there not a statement on the front of the Bill stating that the provisions are, in our opinion, compatible with human rights legislation? In what way am I suggesting that that is not so? The hon. Gentleman is effectively suggesting that I am saying that the statement on the front of the Bill is incorrect. I am not saying that at all, and I do not understand his logic.

Norman Baker (Liberal Democrat, Lewes)

I shall try again. The Minister seems to be arguing that it is not necessary to insert in legislation the safeguards that were hitherto there—and which, in the absence of the Human Rights Act, the Government would presumably have inserted in this Bill, too. He says that it is not necessary to insert those safeguards because of the existence of a further piece of legislation external to the Bill—the Human Rights Act—which, he believes, in the absence of safeguards in this Bill, will provide the necessary

protection. If that is what the Minister is saying, the statement on the front of the Bill is clearly inaccurate. The test being applied to compatibility is contained not in pages 1 to 284 of this Bill alone, but in pages 1 to 284 of this Bill in conjunction with the Human Rights Act.

Bob Ainsworth (Labour, Coventry North East)

I do not see the point. We have incorporated the Human Rights Act. All our judicial proceedings are required to be compatible, and there is a statement on the front of the Bill that it is compatible. Therefore the safeguards are in both this individual legislation and the incorporation that has taken place. It is clear that the production order cannot be issued in breach of the European convention on human rights. I honestly do not understand the hon. Gentleman's point.

Paul Stinchcombe (Labour, Wellingborough)

I support the Minister; he has made a persuasive case. As someone who spoke, powerfully, I hope, in favour of the Human Rights Act on its Second Reading—the hon. Member for Beaconsfield also contributed to that debate— I believe that the Minister is right. The Human Rights Act for which I voted is one of comprehensive application, designed to enable litigants in the United Kingdom to take full advantage of the substantive protections in our courts, without having to go to Strasbourg. It meant that thereafter we would not have to cherry-pick various statutory applications of human rights protections, because we had already voted for the greater substantive protection to come in from Europe.

It would be positively dangerous to go down the route advocated by the hon. Member for Lewes—to ask each Government in respect of each piece of legislation that might impact on any of the substantive rights protected by the Human Rights Act to set out different tests, which the courts could then interpret differently. The whole point of the Human Rights Act protections—which have comprehensive application according to the facts of each case by virtue of the test of proportionality—is that the court can decide the appropriate protection in each case.

In this case, the protection afforded by the Human Rights Act may well be better, bigger and more substantive than the protection afforded by the old statutory formulation. The Minister said that he could not guarantee that, and neither can I, but it is qualitatively different. Under the formulation in previous legislation, which Conservative Members, supported by the Liberals, believe should be reproduced, the judge would have to have no more than reasonable grounds for believing that there might be some proportionate effect. Under the formulation more normally applied in human rights law, as summarised in the explanatory notes, judges under the Human Rights Act would have to decide for themselves whether there was proportionality.

Dominic Grieve (Conservative, Beaconsfield)

I am not sure whether I agree. Presumably the judiciary would have had to interpret the existing legislation, which would include the caveat about the public interest. I would have expected that in those circumstances, the judiciary would initially examine what the statute said, consider the public interest, and then consider whether, notwithstanding the fact that the public interest test was satisfied, the criteria of the Human Rights Act were fulfilled. If there were any incompatibility between them, the Human Rights Act would take precedence.

I acknowledge that there might be an argument for claiming that the amendment would add an excessive, extra and unnecessary test to the system, but I fail to understand how it could be claimed that that addition would defeat the Human Rights Act in any way.

Paul Stinchcombe (Labour, Wellingborough)

Although I have some sympathy for the hon. Gentleman's point of view, it offers a less desirable approach, as it invites Parliament to try to specify, through different formulations of words and phrases, the appropriate protections for each potential breach of a substantive human right. He might think that appropriate, but I do not. His approach presumes that hon. Members can imagine all those breaches, and all the different impacts that they might have on individuals, and that we can then define the appropriate tests to meet all the possible circumstances, whenever they arise, and whenever they may go before a court.

The alternative approach acknowledges that it is not Parliament's job to do that. Parliament has already decided to allow the judges to develop their own test, according to the binding parameters of European convention law.

Even in the old days, one could have enjoyed the advantage of those substantive human rights protections by going to Strasbourg, but since the introduction of the Human Rights Act, people who wish to enjoy that advantage no longer have to go to Strasbourg, wait five years and spend £40,000. They can enjoy it here and now. That is not only in conformity with the Bill that I voted for—and which, I believe, the hon. Member for Beaconsfield spoke in favour of but did not vote for. It is also the proper application of that Bill, and it is the right way to proceed if we are to develop real human rights protections in this country.

My argument might be wrong, as I am speaking intuitively after considering the matter only briefly, but the Minister's case appears to be powerful.

Vera Baird (Labour, Redcar)

I have not heard all the arguments—but why should I let that stop me from contributing to the debate?

I want to make a general point about application. The Human Rights Act has to be read into all legislation, regardless of whether it was passed before or after the enactment of that legislation. However, those who draft legislation after its enactment should consider whether it is good enough simply to draft it in broad terms and then say, ''We don't have to worry

about the detail, because the Human Rights Act implies it anyway.'' If they did that, the details of the law would not be disclosed to many members of the public, because very few people have mastered the Human Rights Act, and if someone wanted to be sure about a detail of law, it is likely that, at the very best, they would merely take a look at the relevant piece of legislation.

With regard to the public interest, therefore, it would be preferable if the Human Rights Act tests implied in each section of future legislation were specified. That would also have the advantage of being foolproof, because even if a draftsman who was trying to put the Human Rights Act into a piece of legislation were inadvertently to narrow its ambit, one would then fall back on the Human Rights Act itself, and that would widen it again, so that the statutory provisions were consistent with the Act. I do not disagree with the Minister's argument, but I take this opportunity to ring a bell of caution about new legislation that fails to follow that preferable course of action.

Dominic Grieve (Conservative, Beaconsfield)

This has been an interesting discussion, and I am conscious of the potential shortcomings of amending the Bill as I have proposed, but the issue still troubles me. If the Government were to adopt the hon. Lady's approach, there would be a good reason—because there would be something in the Bill—why I should not be worried about the disappearance of the old statutory protection. I shall press the amendment to a Division, not because I think that I will succeed, but because it is important to flag up the issue. It may provide a stimulus to the Government to think further, possibly on Report, about this and other legislation. This is an important issue.

Stephen Hesford (Labour, Wirral West)

As the hon. Gentleman intends to press the matter to a Division, will he tell us whether there is a difficulty in any case law under the old legislation that would be addressed by the amendment? I know that he has ''Archbold'' with him, and it would be helpful if he could refer to a case that might be decided differently if the amendment were not successful.

Dominic Grieve (Conservative, Beaconsfield)

Reading chunks of ''Archbold'' to the Committee may not be the most rewarding of activities. I have not looked at the case law, but I am fairly sure that cases have turned on that issue. I cannot immediately see an ''Archbold'' footnote that might assist the Committee, although there might be one on page 26. If I find one I shall tell the hon. Gentleman about it. I do not see the harm in pressing the amendment to a Division.

As for my exchange with the hon. Member for Wellingborough, in view of the primacy of the Human Rights Act, I do not see that reinserting the public interest provision in the Bill would have any downside for civil liberties. In so far as that is insufficient or incompatible with the Human Rights Act, the Act will triumph—but the provision may provide better protection than the Human Rights Act, and if it does, the court will interpret that. The fact that the Minister

has, quite properly, told the Committee that he cannot vouch for the identical nature of the two protections reinforces my view.

Paul Stinchcombe (Labour, Wellingborough)

There is one worry that I have particularly in mind. If, as the hon. Gentleman recommends, there is a statutory formulation—and the Minister certifies that it is compatible with the Human Rights Act—the courts may be reluctant to go beyond that particular statutory test to find greater protection.

Dominic Grieve (Conservative, Beaconsfield)

I do not think that that can be right. Under the Drug Trafficking Act 1994 a person can go before the judge and ask for the public interest test. The judge may refuse, and the defendant can say, ''There is also the proportionality test, and my argument is that it goes further.'' That could happen today without any interference as a result of those words being put back into the statute, and I therefore cannot see the disadvantage. The only possible question is whether we are making too big a meal of the issue. I am prepared to accept that that is a valid argument, but on balance, I do not think that it is such a big meal that I am not prepared to try to eat it.

Norman Baker (Liberal Democrat, Lewes)

I support the hon. Gentleman. He is not making too big a meal of this important point. What worries me about the Government's response is that they are arguing that because the Human Rights Act exists, there is now less need to put safeguards in legislation. Therefore, in a way, legislation will become less compatible with human rights than it was before.

Dominic Grieve (Conservative, Beaconsfield)

I sympathise with everything that the hon. Gentleman has said—[Interruption.]. The hon. Member for Wrexham (Ian Lucas) wishes to intervene.

Ian Lucas (Labour, Wrexham)

In the interests of clarity, and in the interests of the general public, is it not better to have a single test of general application, rather than having a two-stage test of the type that the hon. Gentleman envisages?

Dominic Grieve (Conservative, Beaconsfield)

That is a big point, and one to which it may be difficult to do justice during our proceedings. When I participated in the debates on the Human Rights Act, my let-out clause—for I did not vote for it—was the Henry VIII clauses, which I did not like. Interestingly, they come close to the relationship between the judiciary and Parliament. We had many discussions about how the legislation would apply. I had always accepted that the Act, a little like our membership of the European Union—I am not saying that there is an equivalence—was along the lines of Lord Denning's words when he referred to the tide that comes up our rivers and creeks, in that it had primacy, unless specifically excluded.

Nevertheless, that is not a good reason why Parliament should suddenly wash its hands—and its brains—of the checks and balances under other legislation that it considers should be in place to safeguard the rights of the individual. If it creates safeguards that are greater than those under the Human Rights Act, which is easy to do, I regard that as positive action to take, while if it places lesser

safeguards in Bills, those in the Act will kick in, to emphasise the primacy of the convention and our need to observe it. That is how I thought we would proceed, and it has come as a slight surprise that, in this Bill and others, it has been vacuously said, ''Oh well, the Human Rights Act deals with such matters, so we need not concern ourselves about them any more.''

Stephen Hesford (Labour, Wirral West)

As the clause stands, are we not in the same position? The Government have introduced certain safeguards that may not cover every eventuality, but that has been done in the context of the human rights legislation. If we add other safeguards under the Bill, we will not necessarily cover every eventuality, and as the hon. Gentleman said, we will always be reliant on the Human Rights Act as a backstop. We have nothing that takes us further forward.

Dominic Grieve (Conservative, Beaconsfield)

Back in 1994—I suppose that the hon. Gentleman would describe that period as the bad old days of authoritarian and illiberal Conservative government—those who drafted the Drug Trafficking Act 1994 were conscious that it constituted a considerable infringement of human rights. They were worried about it. The convention existed then, and there was always the possibility of taking such issues to Strasbourg, but it is noteworthy that, when drafting the orders for production, the draftsmen—presumably acting on the policy directive of authoritarian Conservative Ministers who were only too happy to grind the poor citizen into the dust—put in a considerable range of tests and safeguards on when production should be ordered, given the unusual nature of the legislation.

One of those safeguards was the issue of public interest balanced against other matters that had to be taken into consideration. It seemed that someone was whispering into the ears of those authoritarian Ministers, saying, ''Remember the poor, downtrodden people who may be affected by the legislation.'' I, being a good Conservative—with a small ''c'', as well as a big ''C''—am loth to depart from that.

Bob Ainsworth (Labour, Coventry North East)

I am not sure that the hon. Gentleman is a good historian, even if he is a good Conservative. I always thought that the high tide of the authoritarianism that he describes occurred about 1983 to 1989, rather than 1994. It had come slightly off the boil by then, perhaps for internal reasons in the Conservative party.

Two separate arguments seem to be involved. If Parliament wanted to give additional protection to a measure, over and above that provided by the ECHR, we are free to do that, and we would say so. However, the hon. Gentleman and the hon. Member for Lewes seem to be saying that, even when the intention is to go no further than the ECHR, and despite the incorporation of the ECHR and the comprehensive

way in which that legislation works, we must name individual instances not only in every Bill but in every clause.

I do not know what the hon. Gentleman is trying to achieve. Is it additional rights? If the policy objective is to give additional rights, we are, as I said, free to do that. Is he trying to create a total mess with our legislation, and a lawyers' playground, in which people apply two different sets of thinking subsequently, and can mess around and charge for so doing?

Dominic Grieve (Conservative, Beaconsfield)

I hope that the Minister will not take this unkindly. I can promise him that the incorporation of the ECHR into English law has created a lawyers' playground mark 1—and big time. One of the reasons is that it introduced—I do not disagree with this, but criticisms were correctly made when it was incorporated—a series of concepts in a fairly broadly written convention that is subject to judicial interpretation over the years and capable of being evolved by judicial interpretation and gives infinite scope for lawyers to present detailed arguments. Indeed, the Prime Minister's wife—this is not a criticism—has made a career of doing exactly that, often to the detriment of the Government headed by her husband. Many other lawyers, too, some of whom may be sitting in this Room, have been quite successful in that field.

Bob Ainsworth (Labour, Coventry North East)

That is all good stuff, but what is the hon. Gentleman trying to achieve? Is he suggesting a higher test for production orders? If so, that is a matter of policy. I do not believe that a lower test applies. Is he, as I can only imagine, suggesting that we should duplicate the provisions in every case for which we want the test to be the same?

Dominic Grieve (Conservative, Beaconsfield)

I am trying to do two things. I listened carefully to the Minister's comments. He was unable—this is not a criticism; indeed, I am grateful for his candour—to give me the assurance that the two exactly dovetail into each other such that further protections could not be provided by the public interest test that might not be covered under the ECHR. First, therefore, I am loth to get rid of a possible safeguard in such circumstances when I am not persuaded of its downside.

Secondly, I accept that—this is a more difficult argument—on the whole, if saving provisions narrow a power that has been specified in a measure, for the sake of clarity it is always much more desirable for that to appear in the Bill as Parliament's intention, even if the option remains open for the individual to go to court—as it would, because of human rights compatibility—in order to test whether Parliament's intention, however laudable, really complies with the evolving corpus of judicial decisions under the Human Rights Act. That was exactly what I thought that the Human Rights Act would do. The difference was that that would be allowed in our courts rather than the poor person having to go to Strasbourg to get his redress. That is what I would like to happen.

As an issue of principle, I do not like Parliament to abdicate safeguards, with the Minister and his officials saying, ''It's all right, you can leave that to the Human

Rights Act. We've looked at that and the convention, and there doesn't seem to be an incompatibility.'' There have been several instances in which Ministers have been only too happy to pop their imprimatur on the front of legislation, but subsequently serious doubts have arisen about its compatibility. That does not apply to the Bill, but it is a point of principle.

Mr. Hawkins rose—

Bill O'Brien (Labour, Normanton)

Order. Before the hon. Gentleman intervenes, I advise the Committee that we are repeating a lot of points. I want new initiatives, and I hope that we will get them, because keep going around the same circuit.

Nick Hawkins (Conservative, Surrey Heath)

Following your helpful ruling, Mr. O'Brien, I hope that my contribution extends the point.

The Minister said that it is unnecessary to have other safeguards, and my hon. Friend the Member for Beaconsfield pointed out that there have been several occasions when Ministers have given blithe expressions of confidence that legislation is compatible with the Human Rights Act 1998.

Do my hon. Friends agree that a classic example of that happened during consideration of the recent Anti-terrorism, Crime and Security Bill? The Home Secretary was more or less forced to withdraw huge chunks of it because he had to accept human rights concerns expressed in both Houses, especially by Conservatives and by my hon. Friend the Member for West Dorset (Mr. Letwin), the shadow Home Secretary, in particular.

As my hon. Friend the Member for Beaconsfield said, a further valid point is that many lawyers are pursuing human rights points in the courts. I expressed such worries when I was shadow spokesman for the Lord Chancellor's Department and I said that the huge cost of the Human Rights Act was greatly underestimated.

Dominic Grieve (Conservative, Beaconsfield)

My hon. Friend is correct. His point about the Anti-terrorism, Crime and Security Bill is especially pertinent. There are further examples. The House pushed through anti-terrorism legislation after the Omagh bombing that, mercifully, would never be used, but that would not stand up for five minutes to the scrutiny of the Human Rights Act, although the stamp is on its front cover. That legislation caused me great worry when it was introduced. It enjoyed great cross-party support, but I did not like it.

George Foulkes (Labour/Co-operative, Carrick, Cumnock and Doon Valley)

When the hon. Gentleman agreed to this morning's programme motion, was that to allow us to discuss substantive points, or to continue a political polemic?

Dominic Grieve (Conservative, Beaconsfield)

I was almost on the point of sitting down about 15 minutes ago. There have been several interventions, each of which has called for a response. A feature of the Committee has been a willingness to cross-examine hon. Members who make points, which is very healthy. I am sorry if I have taken longer than I wished, but I do not want to exclude anyone who

wishes to speak. I shall give way to the hon. Member for Lewes, and I hope that we can then bring our discussion to a conclusion. I have simply tried to answer points that have been raised.

Norman Baker (Liberal Democrat, Lewes)

I do not think that this is political polemic. There may be disagreement, but this is not polemic. We are discussing an important issue, and I had difficulty with the Minister's response.

Will the hon. Member for Beaconsfield give me guidance? There is a suggestion that the hon. Member for Redcar (Vera Baird) and I, as members of the Joint Committee on Human Rights, appear to have no function. When the Bill comes before us, we are not expected to examine each clause and decide whether it is compatible, but say, ''The Human Rights Act exists. We can confirm that it still exists, so we'll tick off the Bill and go to the next item on the agenda.'' Every Bill has to be self-contained. That is what the Joint Committee does: it examines each Bill's provisions, it does not automatically say, ''Another piece of legislation exists, and therefore it is okay.''

Dominic Grieve (Conservative, Beaconsfield)

I agree entirely with the hon. Gentleman. The Joint Committee will clearly play an important role in how our legislation develops. Parliament should not abdicate responsibility for what it wants to a piece of legislation that is subject to judicial interpretation, which by its very nature—and I do not criticise it—is quite nebulous.

I do not want to take up any more of the Committee's time. I shall press the amendment to a Division as a matter of principle. I am not satisfied that there are no good advantages to be gained by incorporating the provision, which was included in previous legislation, into the Bill.

Question put, That the amendment be made:—

The Committee divided: Ayes 8, Noes 13.

Clause 337 - Further provisions

Bob Ainsworth (Labour, Coventry North East)

I beg to move amendment No. 290, in page 195, line 2, leave out 'may' and insert 'does'.

Bill O'Brien (Labour, Normanton)

With this it will be convenient to take Government amendments Nos. 474 and 529.

Bob Ainsworth (Labour, Coventry North East)

These are purely drafting amendments. They have no substantive effect. My aim is simply to replace the word ''may'' with ''does'' in clause 337(1) and (4) and clause 370(1). Amendments Nos. 290 and 474 bring the wording of the clause in line with that used in respect of the other powers in clauses 343, 350, 357 and 363. It would be helpful to be consistent within part 8. Amendment No. 529 makes the same change to clause 370, the corresponding Scottish clause.

Dominic Grieve (Conservative, Beaconsfield)

I am mildly intrigued. I remember that in an earlier sitting we discussed ''must not'' and ''may not''. We emphasised that ''may not'' means ''cannot''. I wonder why the word ''does'' has suddenly crept in. For my edification, will the Minister enlighten me as to why ''may'' should be replaced?

Bob Ainsworth (Labour, Coventry North East)

I cannot recall that we had a huge controversy over the words that the hon. Gentleman mentions. As I have said, I do not think that my proposals make any substantive change other than providing consistency in part 8.

Vera Baird (Labour, Redcar)

If the word ''may'' is removed from line 2 and replaced by ''does'', will not the provision read

''except that a lawyer does be required to produce material''?

Dominic Grieve (Conservative, Beaconsfield)

Line 2 states that a

''production order may not require''.

It will now read ''does'', not ''may''. Line 1 is the title of the clause.

Vera Baird (Labour, Redcar)

I see. Thank you.

Amendment agreed to.

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 550, in page 195, line 3, leave out from first 'material' to end of line 4.

Bill O'Brien (Labour, Normanton)

With this it will be convenient to take the following amendments: No. 555, in clause 343, page 199, line 13, leave out from first 'material' to end of line 14.

No. 560, in clause 350, page 202, line 27, leave out from 'document' to end of line 28.

Dominic Grieve (Conservative, Beaconsfield)

I am sorry to return to the issue, but I was a little puzzled by the specific exception in respect of legal professional privilege that the Government felt the need to incorporate under the clause, which states:

''A production order does not require a person to produce, or give access to, privileged material, except that a lawyer may be required to produce material containing only the name and address of a client of his.''

I seek some enlightenment from the Minister. Why was it felt necessary to include such a provision? If we refer to the legal bible, ''Archbold'', about the nature of legal and professional privilege, we find references to examples of material that may not be subject to the privilege. I cannot find any reference to the specific exclusion of a client's name and address, but I may be wrong. Even if it were excluded from privileged material, why is there a need to spell that out explicitly when that could be the subject of argument when the case came before the judge for determination?

I assume that the Government and their draftsmen had a specific intention in mind. The mere fact that they spell out such a provision explicitly rings an alarm bell with me, in that there is an intention to restrict legal professional privilege in such instances. It is possible to do that by specific reference under statute, but why do the Government wish to do that?

It is noteworthy that there are no notes to clause 337 in the explanatory notes. What is intended? Perhaps I am wrong, but I had always assumed that if a client came to me for legal advice, the legal professional privilege extended to a duty of confidentiality towards him in respect of what he told me, the fact that had been to see me at all, and certainly his name and address. If I consulted my professional body, perhaps I would be told that I should provide such material. Whether or not such knowledge is confidential, why are such matters being spelled out explicitly under the clause if it is not the intention to restrict legal professional privilege in such a fashion?

Bob Ainsworth (Labour, Coventry North East)

The amendment would mean that a lawyer would not have to produce material or information in response to an investigation warrant or an order made under this part of the Bill that was subject to legal privilege in any circumstance. Importantly, that would include material or information that provided only the client's name and address.

The Government recognise the need to prevent legally privileged material and information from being obtained for an investigation and then being used to construct a case. Legal privilege is a common concept in our law, and receives statutory definition in section 10 of the Police and Criminal Evidence Act 1984; in broad terms, it defines the privilege as communication between an individual and a lawyer in respect of legal advice or proceedings.

However, it would assist the operation of investigations if an investigator were able to obtain the name and address of persons under investigation, and of their associates. Such information might be held on a solicitor's database, and as it may have been obtained as a consequence of a request for legal advice, it would be subject to legal privilege. The Government want to provide a limited exception that would allow access to specific legally privileged material and information.

The obtaining of addresses will assist in the serving of production orders, search warrants, and the other orders under part 8. The addresses in the documents provided by a lawyer will not be allowed to form a part of cases brought before a court—regardless of whether

they are confiscation, civil recovery or money laundering proceedings. The address may be of operational use and help the investigator to obtain his evidence.

As the hon. Gentleman is alert to new encroachments on legal immunity, I offer a quotation from section 2(9) of the Criminal Justice Act 1987:

''A person shall not under this section be required to disclose any information or produce any document which he would be entitled to refuse to disclose or produce on grounds of legal professional privilege in proceedings in the High Court, except that a lawyer may be required to furnish the name and address of his client.''

The provision is a direct read-across from the 1987 Act, and it does not extend the power that that Act established, so he need not search for detailed hidden intentions.

As the provision—in common with many others in the Bill, as has frequently been mentioned—is a direct read-across, I hope that the hon. Gentleman will withdraw the amendment.

Mark Field (Conservative, Cities of London and Westminster)

It is evident from earlier exchanges that I am no great friend of lawyers' professional privilege—although my hon. Friend the Member for Beaconsfield has made it clear that that privilege is intended to protect clients, rather than lawyers.

The Minister quoted from the 1987 Act, but the corresponding part of the Bill is worded differently. I have a concern, which might not have been considered, about the burden that may be placed on a lawyer to produce material. If a money laundering scam involving large amounts of paperwork is operating from a residential address, I am concerned that the wording may place a strong obligation on a lawyer to produce material. The lawyer may be required to produce all the material, and that could include reams of headed notepaper that need not necessarily be in his possession at any one time. The wording of the 1987 Act takes account of what the Minister wants to achieve, without putting that additional obligation on a lawyer.

Bob Ainsworth (Labour, Coventry North East)

The clause is carefully worded and refers to material that contains only the client's name and address and precludes other legally privileged information being seen by an investigator. Clause 350(1) refers to disclosure orders and requires a lawyer to produce information about names and addresses. It will go no wider than that. The basic point, which has emerged in discussions about other parts of the Bill, is that the same powers already exist, albeit in a broader context. The powers already applied to disclosure orders and they now apply to production orders as well, but there is no intention to provide material that contains anything other than the client's name and address.

Dominic Grieve (Conservative, Beaconsfield)

I am sorry, I may have made a mistake. Did the Minister say that the previous example of the use of such a clause was under section 29 of the Criminal Justice Act 1988?

Bob Ainsworth (Labour, Coventry North East)

No, section 2(9). If I said section 29, it was unintentional.

Vera Baird: Will the Minister kindly read out section 2(9) again? I am not certain, but I thought that there was a distinction between the two.

Bob Ainsworth (Labour, Coventry North East)

Yes. Section 2(9) of the Criminal Justice Act 1987 states:

''A person shall not under this section be required to disclose any information or produce any document which he would be entitled to refuse to disclose or produce on grounds of legal professional privilege in proceedings in the High Court, except that a lawyer may be required to furnish the name and address of his client.''

Those, I hope, are the words that I read out previously.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister, and it is noteworthy that such a provision does not feature in ''Archbold''. That may be because it applies to some very narrow and limited circumstances in civil litigation. There is a reference in ''Archbold'' to the High Court, too. I am not happy about what we are doing. We may be extending substantially powers that would not have been used previously. I do not have section 2(9) in front of me, but it sounds that the provision may apply to far more restricted circumstances. I see that the Minister is being passed a note. Such a provision could open the door for people to say to lawyers, ''You have to tell us the name and address of the person who sought your advice.'' That troubles me.

My hon. Friend the Member for Cities of London and Westminster (Mr. Field) pointed out that the purpose of legal and professional privilege is to help the person seeking the legal advice. He is right, but the issue goes further than that. The public policy view is that it is desirable for people to have free access to legal advice, and that is a slightly different concept.

Ian Davidson (Labour/Co-operative, Glasgow Pollok)

Free access?

Dominic Grieve (Conservative, Beaconsfield)

Yes, access without fear of disclosure or revelation. Of course, access could be free in money terms, but it may also be very costly.

Bob Ainsworth (Labour, Coventry North East)

Such a measure is not unprecedented. The reason for the difference in the wording arises from the fact that the Criminal Justice Act 1987 is about the disclosure of information. Clause 337 deals with production orders, which are about producing material. The Criminal Justice Act 1987 gives the Serious Fraud Office the power to require from a solicitor disclosure of his client's name and address, but no more than that. I hope that that explains the difference in the wording. We are talking about a production order, not a disclosure order. I am not saying that the context is not different, what I am trying to say is that the provision is not unprecedented.

Dominic Grieve (Conservative, Beaconsfield)

Yes. It is, perhaps, slightly unfortunate that the draftsman provided no background notes on this interesting clause, as it raises an important issue. Presumably, in view of the use of the word ''may'', the lawyer would under subsection (1) be entitled to go to court and explain why it would be undesirable to have to provide for such material in the production order. Am I wrong? Might the production order require the

production of such items? That might constitute a distinction between the 1987 Act and the Bill. Perhaps the Minister will help us on that and explain the extent of the judicial supervision involved.

In the absence of an assurance on the matter, I shall vote in favour of the amendment, although by the time we reach Report I may realise that I was worrying about nothing. At the moment, however, I am not completely persuaded.

Ian Davidson (Labour/Co-operative, Glasgow Pollok)

I should like to break into this period of self-indulgence on the part of Opposition lawyers. I thought that the hon. Gentleman's point about free access to lawyers was especially interesting, but he quickly corrected himself.

This is a rather introspective dialogue, and I understand why the visitors who came into the Room earlier did not last long. Indeed, one of the officials beside me has started writing his will, on the basis that he thinks that he does not have long to live if the hon. Gentleman continues in his present vein.

The clause relates to the rights of lawyers, who have always struck me as worrying more about their income than about their clients. Does the Minister believe that the Bill gives the Government sufficient power to inhibit the collaboration of lawyers with criminals? We have spent an enormous amount of time discussing the position of lawyers and their need for protection, but I detect a lack of acceptance on the part of the Opposition that there is a problem with lawyers who are corrupt and dishonest and collaborate with criminals and without whom many of the difficulties in our society would not exist.

I hope that in his anxiety to be agreeable to the Opposition the Minister will not move away from the recognition that a serious problem is involved. I hope that he will reassure me that there are sufficient powers in the Bill and elsewhere not only to inhibit lawyers from collaborating with criminals but to catch and punish those who do.

Vera Baird (Labour, Redcar)

I should like to outline what is troubling me so that the Minister can deal with it. The power in section 2(9) of the 1987 Act provides that there is no requirement to supply privileged information, although the lawyer may be required to disclose a name and address. As the Minister accepts, the wording in the clause is different, and I am worried about the possibility that the difference might lead to a problem.

The clause states:

''except that a lawyer may be required to produce material containing only the name and address of a client of his.''

I am sure that the purpose of the provision in subsection (1) is solely to obtain an address for service or operational reasons. I think that it is perfectly clear that that is what section 2(9) of the Criminal Justice Act 1987 is about, too. However, because of the phrase

''material containing only the name and address''

in subsection (1), does not that possibility arise?

The Minister does not want to empower the authorities to get their hands on material of evidential significance in a forthcoming trial or hearing. Is not there a danger that under subsection (1), a lawyer may be compelled to disclose a document containing a name and address? The address may or may not be current, but details of where the client lived three or six months or a year ago might be highly material evidence in an issue to be determined in the investigation.

The clause would compel or oblige a lawyer to give up that information. Because of the words ''material containing'', he might be obliged to give away something of evidential significance instead of just supplying the current name and address. That worries me, because although the Minister makes it plain that he does not intend to erode the right to privilege, I fear that he might be doing so.

Ian Lucas (Labour, Wrexham)

To pick up on my hon. Friend's example, if such a piece of paper contained a date, surely that could not be disclosed under the clause. The subsection says:

''only the name and address''.

Vera Baird (Labour, Redcar)

That piece of paper may not need to contain a date if it is found in the middle of a pile of papers that relate to 1994. It might be fairly clear that it is of evidential significance in connection with 1994, and it need not necessarily give more than the name and address to fall foul of the provision.

Dominic Grieve (Conservative, Beaconsfield)

I am much obliged to the hon. Lady, because what she says makes a great deal of sense. I have tried to exclude the provision in three clauses. Clause 350 includes the provision that matches that in the Criminal Justice Act 1987, and states:

''A disclosure order does not confer the right to require a person to answer any privileged question, provide any privileged information or produce any privileged document, except that a lawyer may be required to provide the name and address of a client of his.''

If we left that in but took out the references in the other two clauses, we might achieve what the Minister wants while removing the possibility of the mischief that the hon. Lady has identified.

Vera Baird (Labour, Redcar)

I had not applied my mind, I confess, to the mechanisms for correcting what I perceived to be the danger, but I am content if I have satisfactorily set out that danger, and if the Minister will consider it. This is not an oppositional point: it is being raised in order to prevent him from inadvertently going beyond his stated purpose.

A person is obliged to provide material. Even if it contains only the name and address, the very existence of something called ''material'', particularly when produced from a particular place, might be important evidentially, and be compellable under the clause. That is not what the Minister wants to get his hands on.

Paul Stinchcombe (Labour, Wellingborough)

Is the Minister saying that the provision ensures that information is provided, or is he saying that someone could be compelled to produce

the material on which that information is provided? If the latter, is that material susceptible to, for example, forensic examination?

What kind of material does the Minister have in mind that contains only a name and address? Even a business card would normally contain fax and telephone numbers. Does he suggest that the provision requires material containing just the name and address, with no extra information on it? As it is unlikely that such material would be in the possession of a solicitor, does he suggest that the solicitor creates material containing that information and then furnishes it? What lies behind the reference to ''material'', other than the fact that it falls under a part of the Bill that deals with disclosure orders?

Bob Ainsworth (Labour, Coventry North East)

It does not fall only under the provisions for disclosure orders. That is the reason for the duplication and the change of words. The hon. Member for Beaconsfield suggested that we could rely on clause 350 alone to allow us to do what is required. That clause deals with disclosure orders and uses the same words as the previous legislation, as he rightly said, because disclosure orders require information to be disclosed. Disclosure orders are, by their nature, more intrusive than production orders, and later in an investigation, the issuing of and compliance with a production order could lead to a demand for a disclosure order.

We are introducing the requirement for a solicitor to be obliged to reveal information. My hon. Friend the Member for Wrexham (Ian Lucas) was correct that we use the word ''only'' in the text of the provision for a production order. We do not want to encourage people to go down the road of using a disclosure order unnecessarily.

A production order relates to the production of material. The only reason why material is mentioned is to put it in context. The order obliges the release of information that contains the name and address only. It is a separate provision; a disclosure order is more intrusive than a production order.

We are not opening up anything by using the word ''material''. However, as my hon. Friend the Member for Redcar suggests, I shall check that nothing unintended arises from the use of the word.

The hon. Gentleman said that he intends to press the amendment to a vote unless I tell him something about a lawyer's right to refuse. All these powers of investigation have judicial oversight. Therefore, the justification for the issuing of an order—whether it is a disclosure order, production order or anything else—must be approved. If that encourages him to vote against the measure, so be it. There is a need to be open. If a production order is approved, it must be complied with. There would not necessarily be a provision that the hon. Gentleman suggests for a lawyer to suggest that he should not be obliged to disclose information that contains a name and address.

Paul Stinchcombe (Labour, Wellingborough)

What would happen if a lawyer had material that contained a name, address and telephone number? Would he be obliged to make a

copy of the material that excised the telephone number, or would he be entitled to argue, ''I don't have material that contains only the name and address of a client, so I don't have to produce it at all''?

Bob Ainsworth (Labour, Coventry North East)

Let me be honest: I am not certain of the answer. To what extent is a telephone number part of an address, or additional to an address?

Ian Lucas (Labour, Wrexham)

My reading of the clause is that any document that contains the name and address and additional material would not be disclosable. If I were a solicitor, I would argue that.

Bob Ainsworth (Labour, Coventry North East)

It is a narrow point, but I do not know whether a telephone number is considered to be part of an address. I shall clarify that, and relay my findings to my hon. Friend the Member for Wellingborough.

Dominic Grieve (Conservative, Beaconsfield)

This has been an interesting debate, and I am grateful for the participation of the hon. Member for Redcar, who highlighted the key issue.

I thank the Minister for his reassurance about derivation. I can envisage circumstances in which a lawyer should, notwithstanding privilege, be required to disclose the current name and address of his client. I shall leave aside the interesting point about a telephone number that thereby excludes the document. As the hon. Member for Redcar rightly said, the way in which subsection (1) is worded would allow the seizure of any documents, even historical ones, that showed an earlier name and address of that person. Each of the amendments deals with a different clause, so it was perhaps a mistake to treat them generally because I now see the potential for substantial distinctions to be made.

Subsection (1), from which I want to delete the reference to a client's name and address, raises a major problem to which the hon. Member for Redcar referred, in that the production of historical material could be required. Similarly, clause 343(1) refers to a search and seizure warrant. It does

''not confer the right to seize privileged material, except material containing only the name and address of a lawyer's client.''

That, too, falls foul of the hon. Lady's point. I accept that clause 350(1) is most draconian. It covers the disclosure order and requires the lawyer personally to provide the name and address of a client. A court can insist on such action. That is exactly in line with the previous provision. The lawyer's duty is not a special protection for him—it extends only as far as the client. A lawyer who was requested to attend court and was told, ''Mr. Grieve, we shall require you in this case to disclose the name and address of your client,'' will do so cheerfully because of the court's ruling.

However, perhaps unintentionally, an attempt may have been made to deal with such matters through the possible seizure of documents or the serving of production orders, and that is not satisfactory. Although it may be possible to amend clauses 337(1) and 343(1) to refer only to the name and current address of a lawyer's client, I wonder whether it would

be sensible to apply such a provision only under a disclosure measure. By its nature, that is a specific request to the lawyer to provide the name and address of a client. The other provisions give rise to the anxiety that police officers and others may be found banging around in front of the chambers of solicitors or barristers looking for material, 99.999 per cent. of which will be privileged but certain documents among which will not be privileged. Unless the provisions are amended, that raises the risk of people ending up with a document that it was not intended that they should lay their hands on.

Bob Ainsworth (Labour, Coventry North East)

The intention was to draft the provisions in a manner that is tailored to the particular order being pursued. That made common sense. Given that there are production orders and disclosure orders, the requirement to give up the name and address under the clause to which the hon. Gentleman referred is the same. That was a drafting decision to ensure that the provision was in place when necessary. He is making some valid points about how the measures should work most appropriately and whether there would be an escalation by leaving the requirement in one clause and not the other. If he agrees, I will make a commitment to reconsider the interplay of the two provisions and decide whether they could be covered better.

I am struggling to envisage what material would contain a name and address and no more than that. As it is extremely hard to do that, it might be better to fall back on the disclosure. If the hon. Gentleman would withdraw the amendment and allow me to consider the matter, I should be more than happy to do so.

Norman Baker (Liberal Democrat, Lewes)

The Minister needs to consider the issue of the telephone number, too, and the issue of what constitutes an address. Is an address a home address, an accommodation address, a postal address or an e-mail address? That, too, requires tidying up.

Dominic Grieve (Conservative, Beaconsfield)

The hon. Gentleman makes some interesting points. I am grateful to the Minister for having undertaken to reconsider the matter, and I will be happy to withdraw the amendment.

I hope that the Minister will be able to satisfy us on the matter before Report, as otherwise I should feel constrained to reintroduce amendments Nos. 550 and 555, but probably not No. 560, as that is how my mind has been working in the light of what I have heard. I would not want the Bill to go to the other place and to

feel that I had not dealt with the matter by default. However, if the Minister will consider the matter, I am happy to beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 474, in page 195, line 10, leave out 'may' and insert 'does'.—[Mr. Bob Ainsworth.]

Clause 337, as amended, ordered to stand part of the Bill.

Clauses 338 to 340 ordered to stand part of the Bill.

Clause 341 - Search and seizure warrants

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 551, in page 197, line 17, at end insert

'but that the material cannot at the time of making the application be particularised.'.

The clause deals with search and seizure warrants—again, important powers. Subsection (3) specifies what the application to a judge for a search and seizure warrant must contain. Subsection (2) deals with the person and the property specified in the application or confiscation, money laundering or civil recovery investigation, which must be linked to them.

Subsection (3) provides that

''the warrant is sought for the purposes of the investigation;

(b) that the warrant is sought in relation to the premises specified''

and

''(c) that the warrant is sought in relation to material specified in the application, or that there are reasonable grounds for believing that there is material falling within section 342(6),(7) or (8) on the premises.''

Reading clauses 342(6), (7) and (8), we find that clause 342(6) states:

''In the case of a confiscation investigation, material falls within this subsection if it cannot be identified at the time of the application but it . . . relates to the person specified in the application''

and goes on to spell that out.

This is a drafting amendment. I could not understand why it was not spelled out in subsection (3) that the material could not be particularised, because it is an important issue. Blanket applications should not be made. I note that that was how the matter was dealt with in previous legislation, which is why I tabled the amendment.

Bob Ainsworth (Labour, Coventry North East)

I am not sure that the hon. Gentleman has not effectively answered the point. Under the amendment, subsection (3)(c) would expressly state that a search warrant issued under its second limb relates to material that cannot be particularised. It would have no substantive effect. As he said, the point is covered in clause 342(6), (7) and (8).

Dominic Grieve (Conservative, Beaconsfield)

To save the Minister time and trouble, after rereading this particular bit of my ingenuity, it seems that he is completely right.

Mr. Ainsworth: At this point, I ask the hon. Gentleman to withdraw the amendment.

Dominic Grieve (Conservative, Beaconsfield)

I was reading the text of the search and seizure warrants against the previous text. The Minister properly answered my question, because the measure is plainly included elsewhere. I have reread the clause and I do not see any distinction that reduces the value of the requirement that one cannot particularise, although I may have thought that there was one when I drafted the amendment. In those circumstances, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Bob Ainsworth (Labour, Coventry North East)

I beg to move amendment No. 291, in page 197, line 25, after 'constable' insert 'or a customs officer'.

Bill O'Brien (Labour, Normanton)

With this it will be convenient to take Government amendment No. 292.

Bob Ainsworth (Labour, Coventry North East)

The amendments will enable Customs officers, as well as constables, to use search powers when a search and seizure warrant has been made by the court in relation to a confiscation investigation or a money laundering investigation.

Customs officers already have such a power that can be used for confiscation investigations under the Drug Trafficking Act 1994, the Proceeds of Crime (Northern Ireland) Order 1996 and the Criminal Justice Act 1988, as amended. They have experience in exercising search warrants during investigations into the proceeds of criminal conduct. The Government want them to keep the powers, and the amendments are necessary to ensure that they do.

Amendment agreed to.

Clause 341, as amended, ordered to stand part of the Bill.

Clause 342 - Requirements where production order not available

Clause 343 - Further provisions: general

Nick Hawkins (Conservative, Surrey Heath)

I want to explore some of the provisions in the clause, and especially what is not covered by the search and seizure warrant. Over recent months and years, we have seen unfortunate cases in which a particular individual—I shall not give him further publicity because he has been well publicised by the tabloid press, and even occasionally the

broadsheets—has raided dustbins outside certain firms of solicitors. He has obtained documents, even if they had gone through a shredding machine and had to be stuck back together, and provided them to scandal sheets and lawyers for the other side for remuneration. There are serious worries that will be shared by the Minister's advisers about the way in which the edges of legal professional privilege have become blurred.

Obviously, no Minister of any Government will condone the theft of private and confidential information. It is often said that this country has the best broadsheet press and the worst tabloid press in the world, and Labour Members may agree with that. Yesterday, the editor of one of our tabloids was all over the media saying that he was allowed to breach all confidentiality regulations relating to a document because, in his words, it was left on a tube train. We must take care not to blur the edges, as we all want the legislation to be effective. Subsection (1) states that the name and address of a lawyer's client is an exception: we must be sure that that does not open the gates a little wider than previous legislation has done.

I am not claiming that the floodgates will be opened by subsection (1) making an exception with regard to

''material containing only the name and address of a lawyer's client.''

However, I do not recall having come across that formulation in previous legislation. If the Minister states that the formulation has previously been used, I would be happy if he could point to legislation that contains it.

I agree with subsection (3), which states that

''material held with the intention of furthering a criminal purpose is not privileged.''

I accept that there are substantial protections in subsection (4), which states:

''A search and seizure warrant does not confer the right to seize excluded material.''

Subsection (2) appears to be simply a restatement of existing law. However, I have concerns about the phraseology of subsection (1), and I want the Minister to address them in detail.

Perhaps the hon. Member for Lewes shares my concerns. He is always concerned to protect the liberty of the subject, and I know from our discussions that we take the same approach to certain public issues.

Will the Minister address my concerns?

Bob Ainsworth (Labour, Coventry North East)

I fail to see what this has to do with Benjy the Bin, or the behaviour of tabloid editors.

The hon. Gentleman was not present when the Committee debated amendments Nos. 550, 555 and 560. I gave a commitment to look at the interaction between clauses 347, 343 and 350. [Interruption.] Perhaps the conversation that is taking place is informing him about those discussions. They addressed the substantive point in relation to subsection (1) and, as he has no problems with any other part of the clause, I hope that that will satisfy him.

Mr. Hawkins: I apologise to the Minister. As he has surmised, my hon. Friend the Member for Beaconsfield was informing me about that part of the Committee's proceedings.

The Minister gave further publicity to the individual to whom reference was made. I hoped that he would not do that.

With regard to the substantive point that I raised, I am happy that the Minister has said that he will discuss it with his advisers.

Question put and agreed to.

Clause 343 ordered to stand part of the Bill.

Clauses 344 and 345 ordered to stand part of the Bill.

Clause 346 - Disclosure orders

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 556, in page 200, line 38, at end insert

'or a civil recovery investigation'.

Bill O'Brien (Labour, Normanton)

With this we may consider amendment No. 557, in page 200, line 42, leave out from 'investigation' to the end of line 3 on page 201.

Dominic Grieve (Conservative, Beaconsfield)

We have discussed civil recovery proceedings, but I hope that the Committee will forgive me for raising them again.

The clause deals with disclosure orders, and as the Minister has rightly said, they are among the most intrusive investigative powers that the legislation will introduce.

Bob Ainsworth (Labour, Coventry North East)

I said that they were more intrusive.

Dominic Grieve (Conservative, Beaconsfield)

Very well, ''more intrusive'' rather than ''most intrusive.''

The amendments would remove the power with regard to civil recovery proceedings. They would confine it to money laundering and confiscation.

When we discussed criminal recovery proceedings, it was explained that they were proceedings that could be brought by the state in a civil court to recover property. As we examined bit by bit the powers that the state would have in such proceedings, it became apparent that there would not be a level playing field between the state and the individual against whom the civil recovery proceedings were brought. The state would have a series of weapons in its armoury that, unlike in conventional litigation between citizens, the other person would not have. The other person could not serve disclosure orders on the director of the type that the director could use under the clause.

I am bound to raise with the Minister the public policy grounds on which it is thought that the director should not have to avail himself of the ordinary rules of court of, for instance, serving interrogatories and receiving the court's assent to that if he wishes someone to answer questions. I want him to explain the power that we are giving in civil recovery proceedings to run around compelling people in non-criminal investigations to answer questions. That is

why we tabled the amendment. I am not willing to let the clause be enacted without his justifying and explaining why he considers that such powers are required in proceedings that have nothing to do with criminal justice but relate to the civil recovery powers that the Bill will confer on the state.

Bob Ainsworth (Labour, Coventry North East)

The clause allows a judge to make a disclosure order, which would compel a person who is the subject of an investigation to answer questions, to provide information or to produce documents. Under subsection (1), only the director may apply to a judge for a disclosure order. As the provisions are drafted, disclosure orders may be made in respect of confiscation and a civil recovery investigation, but not money laundering. The key reason for restricting disclosure orders to confiscation and civil recovery is that the Government have decided to limit the use of disclosure orders in England, Wales and Northern Ireland to the director of the agency. The director is a specific post set up and operated exclusively under the Bill.

The director will not have a role in the investigation of money laundering offences or in any other criminal offence. It is a consequence that the disclosure order will not be available for the use of money laundering investigations. That restriction of access mirrors the restriction of the disclosure order under the Criminal Justice Act 1987, which is available only to the director of the Serious Fraud Office. The amendment would further restrict the granting of disclosure orders to confiscation investigations undertaken by the director. Those confiscation investigations carried out by the usual prosecutor will not have access to such powers.

We anticipate that the information obtained as a result of the making of a disclosure order by a judge may be of significant assistance to the director in determining whether a particular property may be recoverable and therefore whether to initiate civil recovery proceedings in a particular case. Whether it is appropriate to apply for a production order in a particular civil recovery investigation will clearly depend on the information that is already available to the director, including that passed to him by law enforcement agencies. It will also be a matter for him to judge whether a production order is the best way of obtaining information.

In our view, information obtained through a disclosure order may help the director to establish a good arguable case that he requires to obtain an interim receiving order. In some cases, it will be essential for him to do that. The order may also provide information that helps to establish that a stronger case is needed for the substantive recovery hearing. If the director did not have access to a disclosure order for civil recovery investigations, his investigatory powers would be considerably weakened.

Although disclosure orders will not be the director's first port of call, we envisage that there will be circumstances in which they will provide information that is absolutely vital to the building of a case for bringing civil recovery proceedings. To remove the

possibility of a disclosure order would therefore risk prejudicing the effectiveness of the entire civil recovery proceedings under the Bill.

The order is, of course, a potentially intrusive power. When we were speaking about production orders, the hon. Gentleman's explanation of disclosure orders was a little wider than mine. A disclosure order is a more intrusive power, and the Bill therefore contains a number of conditions to ensure that it will be used when appropriate and proportionate to the investigation. Surely that is the argument.

We will discuss these issues further under clause 347. However, one of the requirements for making an order is that there are reasonable grounds for believing that the resulting information is likely to be of substantial value to the investigation. We do not anticipate that disclosure orders will be sought unless other powers—such as production orders—have already been sought or would demonstrably not be appropriate or sufficient to obtain the required information. That would be one of the points that the judge would be expected to consider, in respect of proportionality, before approving a disclosure order.

Dominic Grieve (Conservative, Beaconsfield)

Perhaps I misunderstood the Minister, but earlier he seemed to suggest that the disclosure order was aimed at the person against whom the proceedings were being brought. I am sure that he will agree that that is plainly not the case. The order is aimed at any person. That is particularly so in a civil recovery case, because the application for a disclosure order need state only the nature of the property specified as being subject to a civil recovery order. It is

almost implicit that such an order would be used as a device to require people who are not the owners or holders of the property to supply that information.

Bob Ainsworth (Labour, Coventry North East)

The hon. Gentleman is right. If the power is used in civil recovery proceedings, that may be the case, but it would have to be proportionate. The case would have to be made to the judge, who would consider the necessity for such intrusive powers before giving his approval. As I have said, if we removed that weapon from the director's armoury, we would be dealing a massive blow to the effectiveness of the civil recovery part of the Bill. In many cases, that power will be essential if we are to catch up with the proceeds of crime. Of course, it must be used appropriately, with judicial oversight, to ensure that it is being used proportionately. The judge will quiz the director about the necessity for the disclosure order, and about other routes that were available, before granting the power. The ability to grant the disclosure order will be central to the director's armoury.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister for the opportunity to discuss that issue. I think that he has persuaded me of his argument, and I shall not press the amendment to a Division. However, it is important that we are aware of what we are doing, as we gaily send provisions on their way. The civil recovery mechanism causes me anxiety, and I have made that clear. The clause is another example of how powers will be conferred, notwithstanding that a layman's understanding would be that they are civil recovery proceedings being subjected to a civil test. If—

It being One o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Four o'clock.

Standing Committee B

Proceeds of Crime Bill

Roger Gale (Conservative, North Thanet)

Good afternoon. It might be helpful if I remind the Committee that, in accordance with the amendment to the programme order agreed this morning, all questions necessary to dispose of proceedings on part 8 of the Bill will be put at 6 o'clock this evening, and all questions necessary to dispose of proceedings on part 9 of the Bill will be put before half-past 7 this evening. I say before, rather than at, half-past 7, because this Chairman does not sit past 7 o'clock without a break. I am prepared to suspend the sitting at 7 o'clock and sit again at half-past 8, but I am not prepared to have the staff of the House kept sitting for more than two and a half hours in one go. I tell you that now in order to concentrate minds.Clause 346 Disclosure orders

Clause 346 - Disclosure orders

Roger Gale (Conservative, North Thanet)

I remind the Committee that with this we are taking amendment No. 557, in page 200, line 42, leave out from 'investigation' to the end of line 3 on page 201.

Dominic Grieve (Conservative, Beaconsfield)

When I was cut off at 1 o'clock, I was about to withdraw my amendment. As I was not able to do it then, I now beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 558, in page 201, line 8, leave out 'or at once'.

The amendment, which, like the previous group, relates to disclosure orders, would affect subsection (4), which says:

A disclosure order is an order authorising the Director to give to any person the Director considers has relevant information notice in writing requiring him to do, with respect to any matter relevant to the investigation for the purposes of which the order is sought, any or all of the following—

(a) answer questions, either at a time specified in the notice or at once, at a place so specified.

The Minister will see that my amendment would delete the words ''or at once''. [Interruption.] I am glad that the Minister can confirm that. As with so many things, I was trying to put my amendment in context.

I wonder whether those words are not a little over the top. I should be grateful to learn why it is felt necessary to include them, especially as there is a right of appeal to the court. It is difficult for someone to use

that if he is told that if he does not do something at once, he is guilty of a criminal offence.

Norman Baker (Liberal Democrat, Lewes)

Will the hon. Gentleman reflect on the fact that although it may be difficult to answer questions ''at once'', as it says in subsection (4)(a), it is even more difficult to produce documents ''at once'', as subsection (4)(c) demands?

Dominic Grieve (Conservative, Beaconsfield)

The hon. Gentleman makes a good point. I decided to highlight the first use of the phrase so that we could discuss the subject, as has been my practice in the past in Committee. Will the Minister explain why that phrase is needed? He could also say whether there is an origin for that power, or whether the words ''at once'' are novel among such orders. That would help the Committee to consider whether there is a precedent. I am fully aware of how useful disclosure orders can be, but I find it difficult to find a justification for saying, ''Answer this now.'' I would normally expect someone at least to have the opportunity of getting legal advice, which often rapidly leads to responses to previously unanswered questions.

Bob Ainsworth (Labour, Coventry North East)

We have been in Committee for a few months, and we have got to know each other so well that I am not the slightest bit surprised that the hon. Gentleman expects us to object to someone doing anything at once—or quickly, or forthwith, or now. To do something at once is more than we might expect from the hon. Gentleman's character, as he has shown so well in Committee.

The amendment would mean that the director of the agency would not be able to conduct an interview with an individual under the disclosure order with immediate effect. He would have to arrange for the interview to be held at some stage in the future. The disclosure order power is modelled closely on the power under the Proceeds of Crime (Northern Ireland) Order 1996. That allows the power to be exercised by notice in writing and specifies where, and at what time, the interview is to take place, which may be immediately.

If the director considers that the person whom he wishes to interview already has the knowledge to answer the questions, there is no need for delay. A member of the agency, armed with the authorised notice under the clause, could visit a person who is considered to have relevant information and compel him to answer questions there and then.

The hon. Member for Beaconsfield (Mr. Grieve) referred to a person's rights. There is certainly a right to be legally represented, and that could be seen as clashing with the requirement to deal with the matter immediately. I have asked my officials to check with their colleagues in the Northern Ireland Office on how the provision operates in the Province.

Paragraph 8 of schedule 2 of the Proceeds of Crime (Northern Ireland) Order enables the Secretary of State to draw up a code of practice in connection with the exercise of financial investigations under the powers conferred by that schedule. The code provides information about the operation of a disclosure order in Northern Ireland, and says that a

person should be interviewed in private, and should be permitted to be legally represented, if he asks. The wording in the Bill differs from the code, but there is no difference in substance. We do not believe that there is a substantive difference between ''forthwith'' and ''at once''.

When it is believed that a person has information already in his possession, he should be required to render it. He has the right to be legally represented, and that cannot be cut across by such a requirement.

Paul Stinchcombe (Labour, Wellingborough)

I seek the Minister's assistance. Under the Bill, it would have to be known where the person would be when he was confronted with the order, so that he could answer the questions

either at a time specified in the notice or at once, at a place so specified.

Difficulties could arise if no one knew where the person might be, or if he had moved location by the time that he was contacted. How will that be dealt with in practice? Will it be possible for a notice to be drafted in the alternative?

Bob Ainsworth (Labour, Coventry North East)

Yes, and I think that the clause provides for a specified time. If it were not known where the person was and whether he had the information to hand, it would be appropriate to specify a time when the information was required. I am talking about someone whose whereabouts are known, and it is felt that he has the information and there is no reasonable excuse for his withholding it. Notwithstanding the fact that a person has a right to legal representation, the director has the power under the Bill to insist on the information being rendered immediately. Different circumstances will lead to different requirements under the order.

Norman Baker (Liberal Democrat, Lewes)

I wish to be clear about the legal representation. Can people access legal advice before being required to answer questions ''at once'', or are they expected to answer questions at once and then seek legal advice?

Bob Ainsworth (Labour, Coventry North East)

I am told that the provision operates without difficulty in Northern Ireland. It is governed by a code, in which such issues have to be covered. The requirement to answer questions immediately cannot cut across the right to legal representation, and it does not do so.

Dominic Grieve (Conservative, Beaconsfield)

This has been an interesting discussion, especially now I realise that the provision has a Northern Ireland derivation. Northern Ireland is perhaps not the best place to go to find well drafted legislation, usually because legislation has been drafted on the basis of wanting to suppress terrorism, which is understandable, but sometimes leads to infelicities of wording.

As the Minister says, ''at once'' does not actually mean at once. The rules would be drafted so as to allow people the necessary time, which is exactly what I expected the Minister to say—so I wonder whether the phrase ''at once'' is necessary at all. As the Minister suggested that he would consult his officials, I

am not minded to press the amendment to a Division, but I hope that in doing so he will find out whether happier drafting might be arrived at, which would provide all the powers that he wants without including rather stentorian commands that the provision does not really mean. Once that drafting is in the statute, at some point someone will say, ''Either you answer this moment, immediately, or you are for the high jump.'' That is simply undesirable.

Bob Ainsworth (Labour, Coventry North East)

Is the hon. Gentleman really arguing that in no circumstances should there be a requirement for an immediate answer? That is effectively what he is saying. In some circumstances—plucking them out of the air is rather difficult—with meetings due to take place and legal representatives present, when information was felt to be in the person's knowledge, the director would not be able to require its disclosure until a later date. That is a recipe for allowing people to hide the information required, and thus to avoid the powers in the Bill.

Dominic Grieve (Conservative, Beaconsfield)

If an arrangement has been arrived at whereby someone has been asked to attend at a police station, that person is unlikely to be under arrest. Indeed, it is likely that the person involved would be not the principal target of the civil recovery or confiscation procedures, but merely someone who was, or was believed to be, connected, and who might be able to provide useful information. The mere fact that he has been invited to attend is, I should have thought, likely to put him on notice about the nature of the questions that he will be asked. If he has been lulled or lured into a police station or another place under false pretences, it would be unfair for someone to turn up and say, ''Oh goody—you've got your solicitor here, so you've got all you need. Here's a notice: start answering our questions now on this topic.'' I would still expect a period to be provided, even if it were short—say, 30 minutes—before that person legally had to provide those answers. The use of the phrase ''at once'' therefore strikes me as odd.

I do not know what is intended. I would have expected the notice to contain words to the effect of, ''Notice is served on you that at 6 pm tomorrow you will have to answer questions.'' I have no problem with that. Perhaps the wording is intended to mean, ''At 6 pm tomorrow, or as soon as we can lay our hands on you.'' I do not think that that is what the Minister intends, which is why I say that in view of the regulations that he wants to draw up, the words ''at once'' are, to use an old lawyers' word, otiose. If the words are not otiose, and it is true that the Minister intends to confront individuals and say, ''In this particular circumstance, we will not give you the option of a time or any notice, and you will answer the questions now,'' that is wrong. I hope that he will reconsider the matter.

Bob Ainsworth (Labour, Coventry North East)

As I said, a code of practice currently operates in Northern Ireland. In all probability, we will require that to be used here, to dictate how the director performs his business. I will consider the points that the hon. Gentleman thinks must be covered by the code.

Dominic Grieve (Conservative, Beaconsfield)

What I have said applies with equal force to the production of documents, although in a funny way, I am less worried about that. I am worried about putting a person on the spot and requiring them to answer questions without the prior chance to get legal advice and take preliminary steps. The words ''at once'' imply that that would happen, yet the Minister has conceded that it is not expected to happen. It would be wise to bring the reality of what is intended and the words in the Bill together.

Vera Baird (Labour, Redcar)

I wonder whether there is an answer to the hon. Gentleman's earlier point about the interplay between the requirement for a disclosure at once, and the right of appeal. What would happen if the legal adviser arrived and advised that the document was not proper and should be appealed?

Dominic Grieve (Conservative, Beaconsfield)

I agree with the hon. Lady. As there is a requirement, the offence would be committed immediately. That is extremely undesirable. This situation has not been focused on, and I wonder whether it was focused on in the Northern Ireland legislation.

I am tempted to press the amendment to a vote, but for once, I am prepared to give the Minister the benefit of the doubt. However, I would like a reply that sets out the full position before Report, because I shall undoubtedly return to it then, time permitting—heaven knows, we are going to be pretty pressed for time on Report, depending on how many days the Government allocate.

I do not have all the facts. The Minister may have facts with which he can persuade me so, unusually, I shall not press the amendment. However, there is an important issue here, because apart from anything else, magic words appear on the front of the Bill about conformity with the European convention on human rights. I cannot help thinking that this little bit of the Bill may not conform. Even if we retain the provision, it might not be to the Government's advantage. Northern Ireland legislation is riddled with examples of the Human Rights Act 1998 and the convention being gently sidelined.

Bob Ainsworth (Labour, Coventry North East)

I do not disagree with the hon. Gentleman, in that we must ensure that we understand exactly how the wording in the clause fits in with a required code of conduct and an individual's rights. That must be explained to the hon. Gentleman and other members of the Committee, and we will try to do that.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister. In the spirit of general conciliation, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 346 ordered to stand part of the Bill.

Clause 347 - Requirements for making of disclosure order

Norman Baker (Liberal Democrat, Lewes)

I beg to move amendment No. 552, in page 201, line 30, at end add—

'(4) In deciding whether information which may be provided is of substantial value, the court must be satisfied that the information is directly connected to determining whether someone is in possession

of recoverable property and to any offence through which that property was obtained.'.

You were not here this morning, Mr. Gale, when we had a discussion about the relationship between the Bill and the Human Rights Act 1998. I fear that I may have to refer to that in passing, because I am worried about the clause's compatibility with the terms of that Act.

This morning, the hon. Member for Beaconsfield moved an amendment because he was worried that disclosure orders should not apply in cases of civil recovery investigations. The amendment was not incorporated in the Bill, although I cannot remember whether it was put to a vote. The Minister replied that the provision had to be in the Bill, and that if it were removed, that would leave a big hole. He said that such matters would be best addressed by considering the safeguards—or lack of them—in clause 347.

That brings me to amendment No. 552. I wish to remind the Committee that both the Minister and the explanatory notes concede that disclosure orders are ''intrusive''. It appears that the Government are concerned that the power should be exercised sparingly, and with proper attention to safeguards. The purpose of the amendment is to strengthen those safeguards.

I have mentioned the human rights legislation, and I want the Minister to place on the record his view about the compatibility of the clause, as it is currently drafted, with, in particular, a person's rights under article 8 and article 6.2 of the convention—not least because clause 348 makes failure to provide information to the state into a criminal offence.

I accept that such requirements are not brand new. Disclosure orders can be issued in company and financial investigations, and that is considered acceptable. However, that is a narrow and specific investigative field, in which such orders are justified on the basis of proportionality, particularly in the light of the need to regulate financial services—a subject that will interest the hon. Member for Glasgow, Pollok (Mr. Davidson).

There is a difference between that narrow application and the much wider application that subsection (3) would permit if the amendment were not accepted. The application of that power might be justifiable with regard to, for example, a requirement in company and financial law to deal with the detection of corporate offences, and to the position of a person who might be involved in that, such as a company director. However, under the clause—especially the requirement under subsection (2)(b)—the power could have a very wide application that would cover an almost limitless number of offences, including potentially trivial matters. Therefore, the potential scope for abuse of the provision is significant. That represents a real danger. It is important to remind the Committee that, as the Government admit, the clause introduces intrusive powers.

I presume that the Minister will refer to subsection (3), which states:

There must be reasonable grounds for believing that information which may be provided in compliance with a requirement imposed under the order is likely to be of substantial value.

Although I welcome that safeguard, it focuses on the order's value to an investigation. A disclosure order should also be shown to have a rationale, or connection, with regard to its aims, so it should focus on the property.

Paul Stinchcombe (Labour, Wellingborough)

Does the hon. Gentleman not feel that the clause already contains the focus for which he is arguing? It requires that information required under the order

is likely to be of substantial value . . . to the investigation for the purposes of which the order is sought.

Norman Baker (Liberal Democrat, Lewes)

I agree that the words

for the purposes of which the order is sought

are helpful.

The hon. Gentleman appears to be implying that my amendment is unnecessary. If that is the case, he will have no objection to the words that I have added. As the Minister and the Government accept that the clause introduces an intrusive power, it would be prudent to adopt the belt-and-braces approach that the amendment proposes.

Amendment No. 552 would add a new subsection (4), which would state:

In deciding whether information which may be provided is of substantial value, the court must be satisfied that the information is directly connected to determining whether someone is in possession of recoverable property and to any offence through which that property was obtained.

Under the clause, disclosure orders could be used to obtain general background information about the movements and activities of suspected persons or suspected property, but that is not a sufficient reason to justify an intrusive clause. Other powers are open to the Government if they wish to secure information about suspected persons or suspected property movement. They have powers under the Police Act 1997 and under the Regulation of Investigatory Powers Act 2000, and in some ways those tests are harder. If the Government want to go beyond the narrow issue that links a person with property, the test should be harder. The test is in law already, and the Government can avail themselves of such powers under the two Acts that I have mentioned. That is a more appropriate way forward, and I hope that the Minister will have some sympathy with my argument.

Nick Hawkins (Conservative, Surrey Heath)

It is not often, even in this Committee, that a Conservative Member—particularly one on the Front bench—supports a Liberal Democrat amendment. I now find myself in that position—with one slight refinement. I would have been happier if the amendment moved by the hon. Member for Lewes (Norman Baker) had said that the court must be ''satisfied, so that it is sure''. In recent years, that has been the usual replacement in English law for ''beyond reasonable doubt''.

Would the hon. Gentleman have been happy if my hon. Friend the Member for Beaconsfield and I had added ''satisfied, so that it is sure''? [Interruption]—I

see that he is helpfully agreeing. I am grateful for that, because it confirms the decision made by my hon. Friend the Member for Beaconsfield and myself. We did not think that it was worth while proposing a further amendment simply to add those words, because we believed that the issues would be sufficiently debated when discussing the amendment that the hon. Member for Lewes and his colleagues had tabled. I strongly believe that those words would add a further safeguard, and I agree with what the hon. Gentleman said.

We need to see that the information is directly connected to determining whether a person is in possession of recoverable property and if he is linked to any offence through which that property was obtained. Even the zealots on the Government Back Benches—led, as always, by the hon. Member for Glasgow, Pollok—will realise that the amendment is not an attempt by the Liberal Democrats to water down the Bill. It is not only a helpful safeguard, but a useful clarification. I hope that the Minister will accept the amendment, even if he does not agree completely with the suggested words. He may even prefer my refinement of them—but perhaps that is too much to hope for.

Ministers have been very helpful today, and have already accepted another Grieve/Hawkins amendment. Perhaps the Government will also say that, on reflection, Opposition members of the Committee—whether Liberal Democrat or Conservative—have a good point. I certainly hope so. I will listen with interest to what the Minister says. The hon. Member for Lewes may be right to predict that the Minister will talk about the other subsections that would appear before suggested new subsection (4), but on this occasion, I strongly support the thrust of the hon. Gentleman's amendment.

Bob Ainsworth (Labour, Coventry North East)

The amendment would require that the court be satisfied that the order is likely to be of substantive value to the investigation. The thrust of the Opposition amendment is to qualify that, and, in effect, to forge a stronger link between the investigation and the property or the underlying offence. A disclosure order is a significant power, designed to assist the director in his investigations. For example, the subject of a civil recovery investigation may have gone to great lengths to try to put property that is—or represents—the proceeds of unlawful conduct beyond the reach of the director. I have had the impression when we have been discussing the powers under part 8 we seem to have forgotten, or to be prepared to forget, some of our earlier debates on civil recovery, and the extreme ingenuity that is used to hide the proceeds of crime and render them incapable of recovery. I ask Opposition Members to bear that in mind when they constantly try to rein in the ability of the investigatory powers to recover those proceeds.

Nick Hawkins (Conservative, Surrey Heath)

The Minister, who is being fair in his approach to the issues, should recognise that without undermining the spirit of the Bill, there is a legitimate reason why we should debate the question of what reins should be attached to any investigatory body. When we are extending powers, it is Parliament's job

to ask how far the new powers should go. Again, I see the hon. Member for Lewes nodding in support of my comments.

Bob Ainsworth (Labour, Coventry North East)

I have had that lecture from the hon. Gentleman, his colleagues and the hon. Member for Lewes on more than a few occasions, and each time I have retorted that I accept that completely. However, I hope that there is an equal realisation that we do not sit here to waste our time and pass legislation that only looks good on paper, and simply gives everyone the nice warm feeling that we are doing something about the issues that inflict such damage on our communities.

As we go through the winter spending hours on the Bill, we should be trying to make law enforcement much more effective than it has been to date. I remind the hon. Gentleman that it is perfectly justifiable to say that such enforcement has not been very effective in recovering the proceeds of crime, compared with the powers that other countries have taken and used to make a considerable dent in the profitability of criminal activity there. We should bear both sides in mind when we discuss the issues. No one wants to take powers that are not proportionate to the problem, but we are not here to waste our time.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

I ask this question in genuine innocence. In what way does the Minister suggest that the amendment would weaken the legislation? His reasons are not coming out clearly. I can see some arguments for it, and despite his robust response, the Minister has not told us why the amendment would weaken the Bill.

Bob Ainsworth (Labour, Coventry North East)

I am happy to do that, and will move on to it, but when I am repeatedly told how draconian, awful and utterly uncalled for the legislation is, Members should expect some retort, and some justification of what lies behind the Bill.

David Wilshire (Conservative, Spelthorne)

We seem to have reverted to earlier attitudes, which I find unfortunate. There is no disagreement between the Minister and the Opposition that we must do something. However, when he tries to say that just because we must do something, what the Government suggest is the only thing that we can do, that is when we part company. Does he accept that we do not deny that we must do something, simply because we disagree with what he is trying to do?

Bob Ainsworth (Labour, Coventry North East)

No, I do not want to say that at all. If the hon. Gentleman introduced proposals that would make the legislation even more workable and effective, I would be happy to hear about them.

Ian Davidson (Labour/Co-operative, Glasgow Pollok)

Does the Minister agree that if the Opposition parties continually table amendments that would weaken the legislation, we are entitled to assume that they want to weaken the legislation? If they want to make it work better by introducing proposals that would make the Bill tougher, more precise or more exact, we would examine them in that spirit, but the fact that they are always producing weakening amendments leads us to believe that they are yet again on the side of the collaborators rather than the innocents.

Bob Ainsworth (Labour, Coventry North East)

I was trying to make part of that point in my response to the hon. Member for Spelthorne, although my hon. Friend makes it in his own way, and perhaps goes a little further than I would; that is in line with the constant allegation that I am a big Mr. Softy.

Nick Hawkins (Conservative, Surrey Heath)

The Minister will accept that we are entitled to raise our queries and he is entitled, as he puts it, to retort. Usually the battle is between the Minister, my hon. Friend the Member for Beaconsfield and me, and it would be difficult to imagine a more moderate and reasonable way than the one in which the hon. Member for Lewes moved the amendment, as Hansard will show. He did not accuse the Minister of being draconian or anything else, which is an allegation that Opposition Members have sometimes made with regard to other issues. He moved the amendment in a moderate and reasonable way, as I hope I did when I supported him.

Bob Ainsworth (Labour, Coventry North East)

As ever, yet another amendment—

Ian Davidson (Labour/Co-operative, Glasgow Pollok)

Will the Minister give way?

Bob Ainsworth (Labour, Coventry North East)

If my hon. Friend will forgive me, let us move on, as we are making no headway on the issue, and I am still trying to answer the question asked by the hon. Member for Mid-Dorset and North Poole (Mrs. Brooke).

Information that is obtained through a disclosure order will greatly assist the director to determine whether particular property may be recoverable. It may also help the director to establish the good arguable case that he requires for an interim receivership order, and the stronger case that is needed to achieve success at the substantive civil recovery hearing. The disclosure order will require a person to provide information relevant to the investigation for which the order is sought. The information sought must be of substantive value to the investigation.

Some information may not be directly connected to determining whether the property concerned is recoverable, but it is still relevant and of substantive value. For example, an order may be requested in relation to a person's financial affairs, which may have a bearing on the provenance of recoverable property. Such information would not necessarily be directly connected with the property itself, but could still be of substantive value to the investigation. It is self-evident that the order is intrusive. There is no need for any great confession; we do not deny that in any way. Anyone who considers the power accepts that it is intrusive. For that reason, the Bill contains several conditions that relate to the application of the disclosure order, which will ensure that it is used appropriately and proportionately.

Norman Baker (Liberal Democrat, Lewes)

I am glad that the Minister accepts that the order is intrusive, which is the word used in the explanatory notes. However, does he accept that under clause 347(2)(b), many people of many different types, who may be completely unconnected with any criminal activities, may be caught and required to provide information?

Bob Ainsworth (Labour, Coventry North East)

Yes, but let us consider how the powers will be used and the justification that will be needed in the first place. Under subsection (2), which relates to confiscation investigations,

There must be reasonable grounds for suspecting that . . . the person specified in the application for the order has benefited from his criminal conduct.

For the civil recovery investigation,

There must be reasonable grounds for suspecting that . . . the property specified in the application for the order is recoverable property or associated property.

Those provisos are already included in part 2 and part 5.

Under subsection (3), there is a requirement that

There must be reasonable grounds for believing that information . . . is likely to be of substantial value . . . to the investigation.

The further safeguard is that the Human Rights Act 1998 requires a judge not to act in a way that is incompatible with convention rights. For example, the director will have to satisfy the judge that an infringement of a person's right to privacy under article 8 of the convention is proportionate to the benefit to be gained from making the order.

In civil recovery investigations, the information sought by the director through a disclosure order is likely to be connected to determining whether the property held by someone is recoverable. That is the basic purpose of the civil recovery investigation. It may also relate to information about unlawful conduct through which the property was obtained. However, the information may not relate to both issues, as the amendment would require.

When the recoverable property represents the original property, it may be several stages removed from the unlawful conduct through which the property was originally obtained. Intricate measures may have been taken to conceal the origins of the property. In such cases, it is unlikely that the order would reveal information connected to the unlawful conduct itself. None the less, it may provide information of substantial value that related to whether the property was recoverable, or, indeed, whether it was associated property. The amendment would mean that the director would not be able to apply for a disclosure order in such cases.

The amendment refers to information directly connected to an offence through which recoverable property was obtained. That could be taken to imply that there must be a link between the recoverable property and a specific offence. As we said when discussing part 5, that will not often be the case. Disclosure orders used by the director will not be used in run-of-the-mill confiscation cases. They will be used in complex cases that are taken on by the director and involve confiscation or civil recovery.

As I said earlier, I am talking not about thousands of such cases, but an agency that is targeting particular areas where it feels that it can bring a difficult-to-mount civil recovery case. We shall not be dealing with simple cases in which it would be dead easy to tie back the property to the original offence. The property obtained through unlawful conduct should not have to be linked to a specific offence. It is not necessary to

show that the property was obtained through a particular kind of unlawful conduct, so long as it can be shown to have been obtained through unlawful conduct of one kind or another.

Nick Hawkins (Conservative, Surrey Heath)

I accept that the Minister's explanation is helpful. He said that the measure would be used only in the most complex cases. Even though Ministers give certain assurances and say that that is how matters will normally proceed and that guidance will be available to ensure that that is so, we must be careful that the wording in the Bill that could apply more widely is absolutely right and goes only so far as is proportionate. That is my argument, and that of the hon. Member for Lewes. It is easy to say that the provision will be used only in such cases, but there would be no restriction under the Bill unless the amendment were accepted.

Bob Ainsworth (Labour, Coventry North East)

The restriction under the Bill is the fact that the disclosure orders must be first approved by the judicial authority. As the hon. Gentleman probably knows better than me, the argument about the European convention on human rights concerns proportionality. The justification for the issuing of the order meets his point. That is not missing from the Bill.

The amendment as drafted would apply to both civil recovery and confiscation investigations. It would mean that a disclosure order could not be made in a confiscation investigation, since the concept of ''recoverable property'' applies only to part 5. We believe that the provisions ensure that the disclosure order will be made only when appropriate and proportionate. The amendment would reduce the effectiveness of the order and the director's ability to obtain the information that he needs. I ask the hon. Gentleman to withdraw his amendment.

Mark Field (Conservative, Cities of London and Westminster)

I shall be brief, as we have discussed the clause in some detail. There is no doubt that disclosure orders are intrusive, and Opposition Members have reiterated their strong concerns on the subject. I instinctively feel great concern about the idea of the large-scale use of disclosure orders on innocent people. People may subsequently prove to be guilty of all sorts of crimes, but it is only with strong safeguards that the court should be able to impose on the accused the duty to disclose their financial affairs and details of their property.

The three subsections of clause 347 offer the scope, at least, for a fishing expedition. I appreciate that, as the Minister says, in general there is little doubt that a British court would take an appropriate and proportionate approach, but that is why the hon. Member for Lewes wanted to insert a new subsection. It is easy to trust the courts, and in the great majority of cases there would be no issue at stake. However, if we are simply to rely on the wording, that is all the more reason to firm it up as proposed.

I would feel more comfortable if the court had to

be satisfied that the information is directly connected to determining whether someone is in possession of recoverable property and to any offence through which that property was obtained.

That would provide a sort of safeguard, but would not water the provisions down or make the process more difficult. Above all, the safeguard would mean that there would be no room for lawyers to make a big argument based on the European convention on human rights if there were some sort of dispute.

As the Minister has rightly said, it is important that a disclosure order is made only when it is relevant and of substantive value, but the important question is, to which investigation should it be made? My grave concern is that the provision could be used as a fishing expedition not only for the investigation in hand, but for future investigations involving people who may be subject to other charges in future. For that reason, Opposition Members would feel more comfortable with the idea proposed in the amendment. I am a little sorry that the Minister does not see some merit in the arguments made by my hon. Friend the Member for Surrey Heath (Mr. Hawkins) and the hon. Member for Lewes, who moved the amendment.

Ian Davidson (Labour/Co-operative, Glasgow Pollok)

I speak as a critical friend of the Minister. I would like to respond to points made earlier by the hon. Member for Surrey Heath, whom I hope to see at 9 pm at the annual general meeting and at 9.30 for training in the bar.

Nick Hawkins (Conservative, Surrey Heath)

May I say—without infringing on your patience, I hope, Mr. Gale—that I have already made it known that I propose to be in Room 19 at 9 o'clock to propose the hon. Gentleman's re-election as captain of the Lords and Commons rugby club? He has my word on that.

Ian Davidson (Labour/Co-operative, Glasgow Pollok)

I am grateful for that. I understand that the hon. Gentleman might bring the hon. Member for Henley (Mr. Johnson) with him, and I look forward to hearing about his Ugandan adventures.

Roger Gale (Conservative, North Thanet)

Order. I am not sure what disclosures are likely to take place in Room 19—indeed, I shudder to think what they may be—but I am certain that they have nothing to do with the subject under discussion.

Ian Davidson (Labour/Co-operative, Glasgow Pollok)

The way to find out about the disclosures is to be there at 9 o'clock.

The hon. Member for Surrey Heath confused style and substance. The Liberals' proposal was made in a cuddly, innocuous, soft-centred and liberalish way, but that does not mean that its effect would not be malignant. Again, I notice that only two of the three Liberals on the Committee are here. That makes me sorry that they did not give one of their places to the Scottish National party, which is regrettably absent from these discussions.

The hon. Member for Cities of London and Westminster (Mr. Field) regrets the fact that disclosure orders are intrusive—but they are designed to be so. That is the point of the orders. Frankly, I favour fishing expeditions. If there were more of them, more of the guilty would be caught, and more of my constituents whose lives are poisoned by drugs and drug dealers would stay alive.

David Wilshire (Conservative, Spelthorne)

The hon. Gentleman is going back over old territory, so perhaps he should be asked to go back over the riposte that is bound to follow. Does he

not agree that fishing expeditions would also infringe the rights of the innocent?

Ian Davidson (Labour/Co-operative, Glasgow Pollok)

In some circumstances they might, but that takes us back to the question of a balance. I am prepared for a large number of people to be inconvenienced if that is necessary to save a small number of lives. We have to take those issues on board.

The hon. Member for Cities of London and Westminster mentioned trusting the courts, but I do not trust the courts. They are too full of people who would have agreed with the hon. Member for Henley when he said the other day that he saw all this as ''sneaking''. That is the public-school mentality, whereby an Englishman's home is his castle. Those who hold that view feel that it is inappropriate to intrude in any way, and that the information should not be provided to the state. I have some sympathy with that view in the normal order of things, but we are not dealing with normal issues. These are matters of life and death, and I very much regret the fact that the Liberals are trying to place another hurdle in the way of obtaining information.

Boris Johnson (Conservative, Henley)

Having been provoked several times, I feel that the hon. Gentleman is inciting me to ask him to explain his objection to this extremely sensible Liberal Democrat amendment, which is designed only to link the information to whether someone has recoverable property, and to any offence through which that property was obtained. In a few crisp sentences readily intelligible in Glasgow, Pollok and everywhere else, can he say precisely how the amendment would weaken clause 347? I should be delighted to hear that.

Ian Davidson (Labour/Co-operative, Glasgow Pollok)

My hon. Friend the Minister explained that very well, and it would be inappropriate for me to waste the Committee's time by repeating the arguments. On this issue, I want to be a friend of the Minister and to say that he presented his brief well. My reservation relates to the words ''substantial value'', which appear both in the amendment and the clause. I wonder why that is the hurdle. I would have thought that information discovered often turns out to be of substantial value, but is not always recognised as such when it is being sought. As a result of information discovered, the investigation may take a different route.

Including the word ''substantial'' creates a higher hurdle than is desirable in public policy terms, given the scale of the issues with which we are dealing. I would be grateful if the Minister would clarify why ''substantial'' is the test and not simply whether something is ''of value''.

Bob Ainsworth (Labour, Coventry North East)

I accept that the powers are intrusive. They will be available only to the director, and the necessary safeguards are adequate. The director should be required to show the judge who issues the order that it is necessary and of substantial value to his investigation, and he should not be allowed to have one if it is not. I am sorry if my hon. Friend feels that that makes me inappropriately soft, but we should have safeguards to prevent such orders from being used too widely and inappropriately. The

amendment would limit the court's ability to use that discretion, and would place a restriction on the director by making him link the property with the criminal conduct. As I repeatedly said in discussing part 5, he will not always be able to do that.

Norman Baker (Liberal Democrat, Lewes)

This has been an interesting debate, like many in this Committee. I am delighted to have been called moderate, reasonable and cuddly, among other epithets, all of which are absolutely accurate.

Ian Davidson (Labour/Co-operative, Glasgow Pollok)

Innocuous.

Norman Baker (Liberal Democrat, Lewes)

I am sure that the Hansard record will not show that.

Roger Gale (Conservative, North Thanet)

Order. Hansard does not record comments made from a sedentary position.

Ian Davidson (Labour/Co-operative, Glasgow Pollok)

On a point of order, Mr. Gale. Is it in order for you to make such a comment? My understanding is that Hansard will record sedentary interventions if they are responded to, so as the hon. Member for Lewes was sufficiently innocent to respond to the intervention, it will be recorded. If it was not recorded before, the fact that he is innocuous certainly will be on the record now.

Roger Gale (Conservative, North Thanet)

Order. If it were not in order, Mr. Davidson, I would not have said that—which is why the answer to your question is yes.

Norman Baker (Liberal Democrat, Lewes)

There are worse things to be called in this life than innocuous—although I do not accept that particular accusation.

The hon. Member for Glasgow, Pollok is entertaining, as always, but I want to pick up a point that he made in responding to the debate. I resent the suggestion that anyone who draws attention to what may be excessive state power in whatever manifestation is somehow trying to weaken the Bill or being soft on criminals. As he and the Minister said, a balance has to be struck. Most of us are, sensibly, trying to decide where that balance should be. That is what this is about. It does not help to suggest, as does the hon. Member for Glasgow, Pollok, that anyone who wants to introduce a safeguard is being helpful to criminals or is on the side of collaborators. If the Government had introduced a Bill that provided that people could be arrested without charge, have no access to lawyers and be kept inside for seven days without due process and we wanted to water it down, we would be accused of being on the side of collaborators. That is not a sensible approach.

Nick Hawkins (Conservative, Surrey Heath)

I agree with the hon. Gentleman. Obviously the hon. Member for Glasgow, Pollok sometimes has his tongue in his cheek, but there is always an underlying theme—a theme about which I share the views of the hon. Member for Lewes. There have been one or two occasions on which both the hon. Member for Lewes and his colleagues, and my hon. Friend the Member for Beaconsfield and I, have raised issues that by any standards—even those of the hon. Member for Glasgow, Pollok, as I am sure he would agree if he studied Hansard—would be recognised as trying to toughen up the Bill. It is perhaps unfortunate that those were all in the week

that the hon. Member for Glasgow, Pollok was away getting bronzed.

Norman Baker (Liberal Democrat, Lewes)

I do not know about that, but given the Government's thrust, it is more difficult to find ways of toughening up the Bill than of introducing safeguards, which some of us are trying hard to do.

Ian Davidson (Labour/Co-operative, Glasgow Pollok)

Yes, there are ways of toughening up the Bill. It might have been suggested that the word ''substantial'' be deleted. That was a clear opportunity for the Liberal Democrats to toughen up the Bill, but you declined to do so, and instead—

Roger Gale (Conservative, North Thanet)

Order. I did not decline to do anything at all.

Norman Baker (Liberal Democrat, Lewes)

I am glad that you did not, Mr. Gale.

That would have toughened up the Bill. However, it would also have meant a huge number of extra inquiries about a whole range of innocent people on matters of little value, which would have been a complete waste of time.

Nick Hawkins (Conservative, Surrey Heath)

Does the hon. Gentleman agree that it would be perfectly possible for the hon. Member for Glasgow, Pollok, if he were not terrified of the Government Whip, to table his own amendment to do precisely what he is now advocating and delete the word ''substantial''?

Norman Baker (Liberal Democrat, Lewes)

Throughout our debates we have had a number of useful contributions from Labour Committee members. That has been good for democracy. However, there has been a shortage of amendments tabled by them, which is regrettable, as some of them have been very eloquent, albeit careful to couch their points in terms that stay on the right side of the Whip.

We discussed the point about the Human Rights Act this morning in relation to clause 335. I do not want to return to it in detail—

Roger Gale (Conservative, North Thanet)

Or at all.

Norman Baker (Liberal Democrat, Lewes)

Only in so far as it is relevant to this clause, Mr. Gale.

It will not do for the Minister to keep saying that if the other provisions do not work, the Human Rights Act is there as a backstop because it requires proportionality. Of course the Human Rights Act is there. However, there is also a requirement for legislation introduced by the House to be consistent with human rights legislation in itself—not for it to be inconsistent and for us to rely on the Act to be used later to make up for any deficiency. The test is not whether another piece of legislation helps, but whether the legislation before us is compatible with the convention. I suggest that it might not be, for the reasons that I spelled out earlier.

Incidentally, the Minister did not respond to the point, which is also relevant to this clause, that it is open to a future Government to repeal the Human Rights Act. In that case, all the legislation that is reliant on invoking it at some distant date will be useless; there would not be safeguards in the legislation that had not been repealed.

The amendment was very moderate and reasonable—innocuous, even. I do not think that it was cuddly, but it was the other three things. What is wrong with the court having to be satisfied that information is directly connected to determining whether someone is in possession of recoverable property and to any offence through which the property was obtained? It seems entirely reasonable. I have listened carefully to the Minister's objections, and I understand the thrust of his argument. It seems that there is a debate to be had, and I understand his genuine concerns.

I am not saying that the amendment is perfect, but equally, the Minister has not said that he understands why I tabled it, nor has he responded to the points raised by Conservative Members in recognition that this is a serious issue. It would have been helpful if he had said, ''I understand that this is a serious issue for the following reasons, but I am not happy with the amendment for these other reasons.'' He has not said that; he has given the impression that there is no issue and that the matter should be swept away. That is a pity.

The Minister made one particularly valid point. He was concerned that the amendment would apply to the confiscation investigation—and that was indeed not intended. I am more concerned about the civil recovery investigation element, which was also the concern of the hon. Member for Beaconsfield this morning. For that reason, I shall not press the amendment, but I hope that the Minister will recognise that there is a serious issue concerning how far legislation goes, and how far safeguards have to be introduced.

The Minister has not answered my earlier question about other legislation, already on the statute book, that could be invoked to help in such inquiries. I mentioned the Police Act 1997 and the Regulation of Investigatory Powers Act 2000. Law is there to help with investigations of this nature. I do not know whether those who drafted the Bill have cross-checked whether the powers that they seek to introduce are already present in legislation. I suspect that that has not been done, because I have been able to give two examples.

Bob Ainsworth (Labour, Coventry North East)

The disclosure order is available only to the director with regard to criminal confiscation that has been passed on to him by the prosecuting authorities because of the complexity of pursuing the case, and civil recovery. Those powers are unavailable in other circumstances, and no other equivalent powers exist; they are for the director and for those two uses alone.

Norman Baker (Liberal Democrat, Lewes)

I hear what the Minister says, but could not a disclosure order also be used to establish the movements of someone in whom the director was interested? Legislation already exists for establishing someone's movements; the two pieces of legislation to which I referred would allow that to be pursued in the same way, so I do not think that there has been a cross-check of legislation.

I am sorry that the Minister does not want to accept that that there is any point in the amendment. I am

trying to be helpful to him, but he is not being helpful in response.

David Wilshire (Conservative, Spelthorne)

I am conscious that the hon. Gentleman is reasonable and straightforward, and is trying to be helpful to the Minister in saying that he does not want to press the amendment to a Division. However, some of us would like to vote, so will he reconsider his niceness and generosity?

Norman Baker (Liberal Democrat, Lewes)

From my point of view, and that of my hon. Friend the Member for Mid-Dorset and North Poole, there is a fine balance between whether to vote or not. I accept that the amendment is not 100 per cent. perfect and that the Minister has a point, but I am disappointed that he has not acknowledged in his responses to myself and to the hon. Member for Surrey Heath that a real issue exists. As the Conservatives want to vote, I will not withdraw the amendment.

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 13.

The rest of the debate is in Hansard.