Crime (International Co-operation) Bill [Lords]

Public Bill Committee, 17 June 2003.

Standing Committee A

Clause 32 - Customer information

Nick Hawkins (Conservative, Surrey Heath)

I beg to move amendment No. 146, in

clause 32, page 19, line 8, after 'him', insert 'on reasonable grounds'.

Alan Hurst (Labour, Braintree)

With this it will be convenient to discuss the following:

Amendment No. 147, in

clause 32, page 19, line 25, at end insert

'subject to being given reasonable notice of the order by the applicant'.

Amendment No. 87A, in

clause 32, page 19, line 22, at end insert—

'( ) No customer information order shall be issued unless—

(a) the authority referred to in subsection (2) has included in its application a full explanation of its reasons behind the application, and

(b) the Secretary of State is satisfied that those reasons are sufficient to justify the issuing of the customer information order.'.

Nick Hawkins (Conservative, Surrey Heath)

I welcome you back to the Chair, Mr. Hurst. May I give a particularly warm welcome to the new Minister, without wishing to leave out the long-serving Minister, the Under-Secretary of State for Transport, who is sitting next to her? I have personal knowledge that the newly appointed Minister, whom I congratulate warmly, is tactful and diplomatic. I am sure that all Committee members will benefit from her wisdom. She could show that by accepting Opposition amendments Nos. 146, 147 and 87A. [Hon. Members: Oh.] Well, it is always worth trying, Mr. Hurst.

We are seeking, in three different ways, to introduce a reasonableness test. Amendment No. 146 would introduce the requirement of such a test on the Secretary of State. Although I am not casting aspersions on any particular Secretary of State, they sometimes behave unreasonably. Some might say that the present Home Secretary has been unreasonable about judges. No doubt that was one of the things that led to the chaos of the reshuffle that was and was not, and which abolished the Lord Chancellor and then did not. It would be helpful if there were a requirement in the Bill for the Secretary of State to act reasonably. It surely cannot be unreasonable for a reasonableness test to be introduced into this chapter.

Amendment No. 147 would introduce a different sort of reasonableness test. The financial institution that may be affected would need reasonable notice that an order had been made. Amendment No. 87A accompanies Nos. 146 and 147 and backs up the

requirement for the reasonableness, appropriateness and, in this instance, sufficiency, that should be included in the Bill. There is a need for a full explanation of the reasons for the application and for the Secretary of State to be satisfied that those reasons are sufficient to justify the order being made. In summary, the three amendments together will make clause 32 more reasonable and balanced.

Committee members will be aware, although perhaps the new Minister may not, that I was a banking lawyer before I entered the House of Commons. It is important to balance the needs of privacy in relation to customer information and those of the state. We will deal later with some of the more draconian measures that the Government are putting forward. The Minister will talk about the overriding need to tackle crime, which the Opposition Benches accept. However, a balance must be struck between the interests of financial institutions and their customers, the need for traditional confidentiality and privacy and the state's need to tackle crime. Our amendments will strike that balance more clearly and appropriately.

David Heath (Liberal Democrat, Somerton and Frome)

I welcome you to the Committee this morning, Mr. Hurst, and I extend a warm welcome to the new Minister. She has new responsibilities, and I hope that she will have the opportunity to read back over the previous sittings of this Committee because important questions were put to her predecessor that we were hoping for replies to: I hope that they will not get lost in the change-over, as they are crucial to the Bill's proceedings on Report. I ask her—through you, Mr. Hurst—that particular note be taken of the assurances that were given by the hon. Member for Coventry, North-East (Mr. Ainsworth), who is now Deputy Chief Whip and Treasurer of Her Majesty's Household, to consider particular aspects of what we have been discussing in the previous two sittings.

I return to the group of amendments that we are addressing. It is important that we establish what the procedure will be, because it is intrusive as it stands. I am sure that the tests of reasonableness are correct. The hon. Member for Surrey Heath (Mr. Hawkins) has not entirely persuaded me about amendment No. 146, which may be otiose in establishing whether the Secretary of State has acted reasonably in believing somebody to be subject to an investigation.

Amendment No. 87A is far more important because what is crucial is whether the authority that is issuing the request has given a full explanation for the reasons behind the application so that the Secretary of State can apply discretion properly. That was part of the framework agreement: it was expressly required as part of the procedures, but it is not in the Bill. The Minister may say that that is implicit in making a proper request: I disagree. The amendment of the hon. Member for Surrey Heath makes it much clearer what must accompany the request in terms of accessory information. The Minister might not be conducive to accepting amendment No. 146, but I hope that she will seriously consider amendment No. 87A and the form in which a request should be received under the framework in order to make it a legitimate request for

an investigation that has civil rights implications and should only be done on clear authority and with clear justification.

Bill Wiggin (Conservative, Leominster)

I also welcome the Minister to her new post. It is sad that the brilliance of her appointment has been overshadowed by the negative headlines about others.

The addition of ''on reasonable grounds'' is not significantly different from the ambition of the Government when they added

''subject to an investigation by a participating country into serious criminal conduct.''

However, having worked in the banking environment, I am aware of the great pressure on people in that industry to produce information on customers. Such a competitive edge is required to compete in that industry that, unless the request for information was reasonable, it would be wrong to ignore this amendment. The information that is often asked of people in the banking sector can be trivial and it can be presented in such a way that it would appear to be used as evidence against the employee of the bank. Therefore, we must do everything that we can to avoid the pointless wasting of time that, unless the requests were reasonable, this could lead to.

There is also the issue of privacy and data protection. In this country, where data is carefully protected, it would not be so worrying to release information of a sensitive nature, particularly if it was constructive, in the way that I believe the Government would wish it to be, as that is written in the Bill. However, in countries that are less careful with their data, the problem would be worrying. It undermines the privacy of our banking sector. We need to approach the problem with great caution. There are many other reasons why ''reasonable'' would be a helpful, sensitive and sensible addition to the Bill.

Caroline Flint (Labour, Don Valley)

I welcome you to the Chair, Mr. Hurst. I hope that you treat me kindly. I thank Opposition Members for their kind words. Having served recently as a Back Bencher on the Committee that considered the Anti-social Behaviour Bill, I realise what a hard time some of us gave my predecessor. My hon. Friend the Member for Nottingham, East (Mr. Heppell) was the Whip in that Committee. I note that a few members of this Committee were members of that Committee, and I look forward to working with them during the next few sittings.

I wish to reassure members of the Committee, especially the hon. Member for Somerset and Frome (Mr. Heath), that more information will be forthcoming, as my predecessor said. The Bill is very much about tackling crime, how technology has advanced, and how crime can go beyond the boundaries of nations and continents. I understand that there is general agreement that those who pursue criminals must have access to information that will, we hope, lead to the conviction of those criminals.

I shall deal first with amendments Nos. 146 and 87A, as they both relate to the Secretary of State's discretion to act on a request. Amendment No. 146 is unnecessary. Subsection (1) relates only to the initial decision whether the request is valid. By that, I mean that it is from an appropriate body, it is for customer information in relation to a person subject to an investigation of serious criminal conduct and it is from a participating country. It is the starting point. The clause applies only if those initial tests are met. If any of them are not met, the rest of the clause does not apply.

The grounds on which the Secretary of State will base his decision will be the content of the request itself. If that provides adequate grounds, the clause will apply and he will then use his discretion under subsection (3) about whether to assist in a particular case. If the request does not contain sufficient information for it to seem to him that there is such an investigation concerning the person, he will decline assistance. There is no added value in including ''on reasonable grounds'' under subsection (1). The grounds are simply that the request must meet the basic requirements that I have already explained.

Amendment No. 87A deals with the next step in the proceedings and would introduce an extra hurdle to subsection (4). By requiring a ''full explanation'' of the reasons behind the request, the amendment refers in general terms to the conditions in article 1(4) of the protocol. We are worried about the effect of the amendment and consider that the clause, as drafted, provides proper safeguards against inappropriate requests or fishing expeditions, while still enabling us to meet our international obligations.

When considering whether to accede to a request, the Secretary of State must initially be satisfied that the precondition in subsection (1) is met, as I explained when speaking to the previous amendment. If that condition is not met, subsection (4) does not apply; thus subsection (1) works as an enabling provision, the starting point in considering a request for customer information. At the next step, the Secretary of State has a general discretion whether to act in a particular case. The use of ''may'' in subsection (3) reinforces that point. Furthermore, a judge must be satisfied about all the matters set out in clause 33(1) before exercising his or her discretion to make an order. Those requirements are that the person specified in the application is subject to an investigation, that the investigation concerns serious criminal conduct, that it would constitute an offence here, and that the order is sought for the purposes of the investigation. The grounds on which an investigation for information will take place must be clearly stated.

The Secretary of State's discretion to act on a request from a European Union country will be exercised with the protocol requirements in mind. Our obligation to respond to requests for banking information extends only to requests from countries that have implemented the protocol themselves. That is yet another safeguard to ensure a level playing field for the standards that we expect for the protocol to be implemented. To be valid, requests must therefore comply with all of article 1 of the protocol. If the

request is invalid, the Secretary of State will not act on it. We consider that the general discretion conferred on the Secretary of State in subsection (3) is preferable to a clause that explicitly states how the Secretary of State must act when a request is received in a particular form. It enables us to apply the article 1 conditions and to exercise a general discretion.

The requirement for

''a full explanation of its reasons''

could be interpreted as going beyond what we are entitled to demand from the requesting authority under article 1(4), and be considered a breach of our obligations under the protocol. Article 1(4) only lists certain requirements, and makes no requirement for a full explanation. We do not consider that explicitly listing article 1(4) conditions is appropriate. I am happy to stress that the Secretary of State's discretion will be exercised with the protocol requirements in mind when he is considering requests made by another EU country.

Amendment No. 147 would require a financial institution to provide information under a customer information order, subject to being given reasonable notice of the order. That is unnecessary. The financial institution is obliged to provide the information specified, in the manner and within the time required. Under clause 34(1), it is guilty of a penalty if it fails to comply without reasonable excuse. If an attempt was made to instigate proceedings against an institution that failed to comply with an order within a time scale that it considered unreasonable, it could cite that unreasonable deadline as a reasonable excuse for its non-compliance.

The time limit for compliance will vary from case to case. The person applying the order will take into account all relevant factors, such as the urgency of the request—for example, if a trial date has been set and the information constitutes key evidence—and the complexity of the order. It would also be open to them to take into account the size of the financial institution, if it considered that relevant to the case. Some financial institutions might be of a size that allows them to comply more quickly than others.

We do not consider that the amendment adds anything of substance to clause 32. We are satisfied that financial institutions are adequately protected against unreasonable demands. Finally, the drafting of subsection (5) is consistent with the approach in section 363(6) of the Proceeds of Crime Act 2002.

Nick Hawkins (Conservative, Surrey Heath)

Even though it is obvious that the Government will resist our amendments, I am grateful to the Minister for her comments.

I agree with the hon. Member for Somerton and Frome that one of the amendments in this group of three is more important than the other two. I am grateful to my hon. Friend the Member for Leominster (Mr. Wiggin) for his support, because he, like me, has worked at the sharp end of the banking industry and knows that such matters are important. It is important from the Government's point of view not to place any unreasonable demands on financial institutions, because, of course, the Government need financial institutions to co-operate with them—I see the

Minister nod in acknowledgement—so that they can work together to defeat international crime.

I was tempted to press at least one of the amendments to the vote, just to reinforce the point that Conservative Members feel strongly about these matters, but we shall reach some equally important matters later, when I can press the Minister again.

Bill Wiggin (Conservative, Leominster)

Before my hon. Friend draws his comments to a conclusion, may I ask whether he feels, as I do, that the Minister's reply gave no consideration to the business side of evidence gathering? The whole Committee would agree on wanting a reduction in international crime and everyone to play their part. However, a request has a financial implication for an institution—it is not something about which someone will simply say, ''Ah! This is easy. I shall provide the information without any trouble.'' We are talking about a lot of work for a lot of people who are also trying to earn a living and pay their taxes.

Nick Hawkins (Conservative, Surrey Heath)

My hon. Friend is right. He, like me, has seen the consequences and the amount of work that the requests used to cause, even under existing law. I was on the main compliance board and was group legal adviser for the last PLC for which I worked, so I saw at particularly close quarters the implications of checking the work so that any response requested by Government could be provided fully and accurately.

Caroline Flint (Labour, Don Valley)

We have consulted widely in the banking industry on all the provisions. The Government—as much as any Committee member—do not want the provision to be used inappropriately, thereby leading to undue cost and time spent. The requirements in clause 32 mean that frivolous requests will not be acted on. All EU member states are bound by data protection regulations and data protection law does and will apply.

Nick Hawkins (Conservative, Surrey Heath)

I am grateful for the Minister's reassurances. It is helpful that those are on the record, so that senior executives in financial institutions may refer to the Hansard report of the proceedings. If a Minister says something on the record, that can be relied on later if any relevant matters ever have to be discussed in court. However, when she talks about data protection, she must be aware of clause 32(7), which states:

''A customer information order has effect in spite of any restriction on the disclosure of information (however imposed).''

I shall not press the new Minister too hard on that point some 72 hours into her job, but will she reflect on the phraseology of that subsection in the light of what she has just said about data protection? I understand that the subsection would override any data protection restrictions. Perhaps she will discuss that with officials and write to me and other Committee members. I do not know whether the hon. Member for Somerton and Frome interprets the subsection in the same way, but it can only have that meaning—I see the hon. Gentleman nodding. Perhaps the Minister will reflect further on that matter with officials.

It is helpful that what the Minister said is on the record. The debate, too, has been helpful. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Nick Hawkins (Conservative, Surrey Heath)

I beg to move amendment No. 56, in

clause 32, page 19, line 14, after 'or', insert 'to'.

Alan Hurst (Labour, Braintree)

With this it will be convenient to discuss the following:

Amendment No. 57, in

clause 32, page 19, line 16, after 'or', insert 'to'.

Nick Hawkins (Conservative, Surrey Heath)

The amendments are brief. At first sight, it might appear that we are simply going for grammatical correctness by inserting the word ''to'' in a couple of places. However, as you, Mr. Hurst, the Minister and the Committee may have appreciated, the amendments are more significant than that. They would mean that under the Bill only senior police officers, rather than the Secretary of State, could direct constables. I shall listen with interest to the Minister's response. I shall not take up any more of the Committee's time except to say that rather than the Secretary of State telling constables directly that they should be taking action, there should be a police management decision.

David Heath (Liberal Democrat, Somerton and Frome)

The Minister can ingratiate herself with me in two ways. First, she should pronounce my constituency correctly. I have to say that no Minister has yet managed to do that within three months of taking office, so I shall give her a little leeway.

Caroline Flint (Labour, Don Valley)

Would the hon. Gentleman say the name of his constituency out loud, so I can hear it correctly and ensure that I say it correctly in future?

David Heath (Liberal Democrat, Somerton and Frome)

I am happy to oblige: ''Somertun'', not Somerset, and ''Frume''.

Secondly, the Minister should accept self-evidently correct amendments tabled by Opposition parties when they improve both the syntax and intelligibility of a clause. The hon. Member for Surrey Heath is right in saying that there is an ambiguity that can be corrected by getting the syntax right.

I have a serious question to ask. May I assume that there is nothing in the clause that would prevent a request going through the National Criminal Intelligence Service? It is not mentioned by name, but is obviously a major conduit for a lot of the requests. Is that encompassed in the terms ''senior police officer'' and ''constable''?

Caroline Flint (Labour, Don Valley)

I shall try to explain why we consider it appropriate for constables and Customs officers to apply for customer information orders under the direction of a senior officer. I should make it clear that it would not be the Secretary of State who instructed constables; the instructions would come from senior officers.

The constable or Customs officer may apply for a customer information order only on the instruction of a senior officer. He cannot make an application off his own bat. The senior officer will always be accountable for the decision to seek the order, but we think that he

will not have the time to go to court to make the application in person. Requiring applications for CIOs to be made always by a senior officer would impose a disproportionate burden.

David Heath (Liberal Democrat, Somerton and Frome)

The Minister is misdirecting her comments; no one is arguing that it should always be a senior officer who has to make the application. My point is that, because of the wording of the clause, the subject of the verb ''arrange'' may be taken to be the Secretary of State, and no one wants the Secretary of State to have to arrange for a constable to apply for the order. We want a senior police officer to do that. That, I think, was the argument made by the hon. Member for Surrey Heath.

Caroline Flint (Labour, Don Valley)

I can assure the hon. Gentleman that what he says is the case; we would not require the Secretary of State to direct a constable. That would be up to a senior officer.

Nick Hawkins (Conservative, Surrey Heath)

The Minister has supported the hon. Member for Somerton and Frome and me. If that is what she seeks to achieve, it would be wise for the Government to accept the amendment. The matter would then be absolutely clear and the grammar and syntax would be correct. I hope that she will reflect on that with officials. I shall not waste the Committee's time by pursuing the matter now, because it is only a small point. However, I am sure that the Minister, diligent as I know she will be in carrying out her duties, will chat to officials about the grammar and syntax. If at a later stage she tables a small Government amendment to the same effect as ours, she will have achieved what she says she wants. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Nick Hawkins (Conservative, Surrey Heath)

I beg to move amendment No. 88A, in

clause 32, page 19, line 33, at end insert—.

'(9) A ''participating country'' for the purposes of this section shall be defined as a European Union member state which has incorporated similar provisions in domestic law.'.

The amendment makes a slightly more substantial point, in terms of the effectiveness of the Bill, than the previous one, which dealt with a small point. What we are saying through amendment No. 88A is that reciprocity is crucial. As my hon. Friend the Member for Leominster and I have made clear, the provisions of this part of the Bill will be quite onerous on financial institutions in this country. That onerous burden should only come into operation once we have reciprocity with other EU member states: when other EU countries have adopted similar provisions, it will be appropriate for the provisions that apply to UK financial institutions to come into force.

Too often in the past we have handicapped our own businesses. Albeit in pursuit of worthwhile aims—the tackling of international financial crime is undoubtedly worth while—we have loaded burden after burden on our institutions in a variety of fields, not just banking. However, many other EU countries have not imposed the same burdens on their industries; there has been an absence of reciprocity.

One could give a range of examples, but the one that I tend to use and that springs most easily to mind is the onerous burdens that were placed on our fishing industry. Those burdens helped the Spanish fishing industry, as at the time there were only half a dozen fishery protection officers and they were all based in Madrid, not in the fishing ports. That caused enormous angst among the fishermen of this country, because they felt that they were being held to every dot and comma of all kinds of EU regulations that had been gold-plated in Whitehall and imposed on UK law with criminal penalties attached. They were being inspected every minute of the day when they were in harbour, whereas their Spanish counterparts were carrying on ignoring all the agreements that their Government had signed up to but did not impose on Spanish fishermen.

Without overstating the case, I am anxious to ensure that a minor version of that does not happen in this respect. There is a genuine international mutual interest in tackling international financial crime, and Opposition Members want to aid that work, but we do not want the UK to be the only country that has these burdens imposed on its financial institutions. Given that the basis of the Bill is mutual legal assistance, it would be logical to say that this sort of provision is fine but there is no point in imposing it on our financial institutions until we can be certain that the same impositions will be put on institutions in other EU countries. That is an important point.

Caroline Flint (Labour, Don Valley)

I take on board the hon. Gentleman's comments that if we are to be part of a reciprocal procedure, we want to ensure that other people abide by the same rules. That is fair and just. The Bill and the protocol from which it has come will ensure that that happens.

The purpose of the amendment is to restrict the application of the provisions on customer information orders to countries which have implemented the protocol, but that is unnecessary because to make requests under the protocol, a country must have completed the necessary implementation procedures and notified the Council of the European Union accordingly. Until that time, they cannot make requests citing the protocol's provisions, nor do we have to assist them. The protocol creates the obligation to comply with requests and the arrangements are reciprocal, so the amendment is redundant. However, this debate allows us to discuss how important it is that all countries participate and apply equal standards.

Let me offer a little more detail. Clause 51(2) allows countries to be defined as participating countries. That mechanism allows different countries to be designated as participating countries for the purposes of different provisions of the Bill. A country participating in one provision will not automatically be a participating country for all the relevant provisions in part 1. That means that we can restrict the applications of some provisions of the Bill.

The provisions of chapter 4, to which the amendments relate, enable us to request and provide assistance in identifying and monitoring bank accounts. These forms of assistance are regulated for

the first time in the protocol to the MLA convention. We are under an obligation to provide those forms of assistance only to countries that are party to the protocol, and we have chosen as a matter of policy to restrict the application of chapter 4 to designated countries, rather than to give it general application. That restriction contrasts with our policy more generally on the provision of mutual legal assistance, whereby we do not require the existence of reciprocal arrangements as a condition for assisting. However, these new types of assistance are new and specialised and the amount of work that will be involved in executing such requests will be fairly substantial. We did not consider it appropriate to give the provisions general application when many countries will not be in a position to reciprocate.

Although we will initially apply the provisions only in respect of EU member states that have implemented the protocol, it is possible that in future the provisions could be extended to cover countries beyond the EU. A definition restricting applications to EU member states only would not be appropriate. We have previously given Norway and Iceland as examples, as we are aware that they are interested in fully participating in the protocol and we would be able to extend the provisions to them on the basis of their participation in Schengen. It is possible that there might in future be benefit in extending other mutual legal assistance agreements to cover such matters, but participation of countries outside the EU would be achieved only following consideration of an order by both Houses once such an agreement had been reached.

I hope that that reassures the hon. Member for Surrey Heath that we feel that the protocol has sufficient weight to ensure that we would have the right to turn down requests for information from anybody who did not meet the full scope of its requirements.

Nick Hawkins (Conservative, Surrey Heath)

I am pleased that we moved this amendment, because it has been helpful to hear what the Minister has said, and to have that on the record. I am not entirely reassured by her opening up the prospect of extending the categories beyond the EU, but I understand what she says about needing to help countries such as Norway and Iceland. I am sure that, in the light of the Minister's reassurances that are now on the record, great care will be taken before this operation is extended more widely—I certainly hope that that will be the case. It is helpful to have an explanation—stated by the Minister on the record—that there is some protection in the protocol. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 32 ordered to stand part of the Bill.

Clause 33 - Making, varying or discharging customer information orders

Nick Hawkins (Conservative, Surrey Heath)

I beg to move amendment No. 89, in

clause 33, page 20, line 3, leave out paragraph (a).

Alan Hurst (Labour, Braintree)

With this it will be convenient to discuss the following:

Amendment No. 91, in

clause 34, page 20, line 19, at end insert 'within the specified period'.

Amendment No. 96, in

clause 38, page 22, line 33, leave out paragraph (a).

Nick Hawkins (Conservative, Surrey Heath)

The amendments in this group run together. Amendment No. 96 to clause 38 effectively makes the same amendment for Scotland.

Clause 33(3)(a) is too wide. We should never have a situation in which absolutely every financial institution can be included under the draconian measures of the clause. Amendment No. 91 would introduce a time limit, which would be a useful protection.

We can see the logic of stating in subsection (3)(b) that the application may specify a particular description or descriptions of financial institutions, and that, in subsection 3(c), a particular financial institution or institutions may be specified. However, to state that an application may specify all financial institution reinforces the point on which my hon. Friend the Member for Leominster was helpfully supporting me earlier. We are talking about onerous burdens in terms of the amount of work that will be created. Surely, it must be possible, when an application is being made, that those applying should be able to specify at the very least either a particular group or a description of financial institutions. The clause should not apply to the entire financial sector, as that is too wide.

The phrase ''financial institution'' is defined widely for the purposes of the Bill. We know that there has been huge expansion in recent years because of the success of the City of London and banking in the UK; we are one of the world's great financial centres. However, it is far too wide to allow an application to be made, albeit on worthy grounds, without the other side being heard by a judge in chambers—in other words, ex parte—which states that every financial institution in the whole of the UK must provide particular information. Although the amendment is small, it reflects a matter of concern.

I know from the people with whom I worked when I was group legal adviser for a large financial institution—I used to have meetings with those on the legal committee of the British Bankers Association—that this kind of all-embracing legislation causes problems. I hope that we will have the opportunity to cut down the breadth of the application and put the onus on those who are applying for the order. They should be able to specify either a financial institution or a group, and not the whole financial sector.

David Heath (Liberal Democrat, Somerton and Frome)

I have great deal of sympathy with the hon. Gentleman's comments. It worries me that the classification of a request to all financial institutions has two effects: it creates a great deal of work for many people at inordinate cost; and it renders of less value the information that comes back.

One of the facts that we know about financial investigation is that the amount of information that is coming in, mainly to the National Criminal

Intelligence Service, is vastly in excess of what it is successfully able to work its way through to good effect. Unless we shall have a doubling of the resources that are available—I literally mean doubling—to deal with such matters, I am not sure that useful information will be gained by an all-embracing request that covers every financial institution.

If the intelligence on which the request were based were so weak as not to narrow the scope from all financial institutions to a class of financial institutions, it seems that that intelligence would not pass the original test. It would not be a genuine request for information to enable an investigation to proceed. It would become much closer to a fishing expedition that seeks evidence when none is available. That worries me, too. I hope that the hon. Gentleman's words will be listened to with some care. No one wants to reduce the efficacy of the process. My argument is that the provision would increase the efficacy of the process by focusing it on certain classes of financial institutions.

We should not discount the implications for the industry, nor the investigations and work that will be required to comply with requests. If a customer information request is aimed at all financial institutions and one of them does not reply, it will be guilty of an offence under the Bill. That is inappropriate. Whether or not the institution has valuable information, it will be guilty of an offence. I do not want to overburden either the industry or investigating organisations in such a way that they cannot do the job that we want them to do effectively and at a reasonable cost. I hope that the hon. Lady will seriously consider the amendments.

Caroline Flint (Labour, Don Valley)

We have had a good debate about customer information orders, not wasting time and not being frivolous. We discussed how good it is to be clear about the protocol and how it applies to all the countries taking part in accordance with the Secretary of State when making a decision to proceed. It is important to remind the Committee of that debate, because no one wants a situation in which resources are used unwisely, as the hon. Member for Somerton and Frome said. That will put a burden on those who are investigating, because they could not do anything with the information with which they were provided. There may be an occasion when an order has to specify all financial institutions. That would not happen in each case, but it would be given considerable consideration. We want the provision to be in the Bill, because there may be occasions when it is needed.

Bill Wiggin (Conservative, Leominster)

Does the Minister have any examples in her notes of the type of situation in which all financial institutions would have to be included?

Caroline Flint (Labour, Don Valley)

Let us consider a terrorism case, when no evidence points to an account at a particular bank, but the seriousness of the offence and the need to trace any account was such that we would consider that it justifies a search of all banks.

Bill Wiggin (Conservative, Leominster)

The Minister specified a type of financial institution in her example. I am sure that, given the lack of more specific information, Conservative Members wholly agree that a situation of that seriousness would justify that example.

However, she specified a type of institution. That is why the provision is an example of weak drafting.

Caroline Flint (Labour, Don Valley)

I beg to differ. We envisage that such circumstances are likely to be unusual, but the provision is essential. The ability to target an order at all financial institutions is important on rare occasions. The Bill gives both the Secretary of State and the court discretion about whether or not to make an order. There are safeguards in the clause. The Secretary of State will consider whether a request meets the conditions of the protocol, and specifically whether he is satisfied that the requesting authority has demonstrated why it considers that the information is likely to be of substantial value to its investigation and has grounds for presuming that accounts are held there. If he is not satisfied with that and the request appears to be a fishing expedition, he can refuse it.

The clause is also consistent with the 2002 Act, which contains the power to make an order specifying all financial institutions. If we can do that for overseas money laundering investigations, it is logical by extension to make similar provision in the Bill to enable us to do it for other serious crimes.

Nick Hawkins (Conservative, Surrey Heath)

The Minister will understand that we made the same point during the Proceeds of Crime Bill, on which I sat on the Opposition Benches. The provision is much too wide. The fact that that Government did not accept that does not mean that we are not going to make the same point again. Two wrongs do not make a right. The Government were wrong before on the 2002 Act, and they are wrong now.

Caroline Flint (Labour, Don Valley)

We shall have to differ on that. It was correct to include the provision in the 2002 Act and, having considered other areas of serious crime that require access to information, it would be illogical not to pursue the same direction in the Bill. We stand by our argument during the passage of the 2002 Act. We need the clause to safeguard the occasional need to use the power.

David Heath (Liberal Democrat, Somerton and Frome)

In what way does the Minister feel that if subsection (3)(a) were missing, paragraphs (b) and (c) would not cover all potential circumstances in which the power needed to be used? It would allow for particular descriptions of financial institutions, which could include all of them if that were necessary, but it would not suggest that that was a norm.

Caroline Flint (Labour, Don Valley)

As I have said, we believe that referring to all financial institutions in the clause allows us to be clear, if and when a customer information order is requested, and it is also requested that the search should be wide-ranging. The provision will allow us the power to do that. We have included it in the Bill because it was, as I have said before, used in the 2002 Act and we feel that it should be re-used to make logical the Bill that we are passing. We might not be able to define a particular description. This is a catch-all provision that will ensure that we can enable requests appropriately.

Nick Hawkins (Conservative, Surrey Heath)

In a previous debate, the Minister put a great deal of stress on the fact that the Government consulted widely with the financial world and that they knew that it was supportive. However, the Minister

cannot say that in relation to the amendment, because my noble Friend Viscount Bridgeman said in another place that the genesis of the amendment deleting paragraph (a) was based on

''the concern of the British Bankers' Association, which although strongly supportive of many parts of the Bill, is very concerned that an undue and excessive burden should not be placed on the financial community.''

That is what we are saying. My noble Friend continued, saying:

''Would that not be too burdensome in practice?''

He added that the provision would

''allow fishing expeditions by police authorities with no real direction, at huge financial cost to the banks, bearing in mind that the smaller the bank, the greater the proportionate burden on it''—[Official Report, 27 January 2003; Vol. 643, c. GC 127.]

The Minister ought to reflect further, especially on the helpful point made by the hon. Member for Somerton and Frome, who said that the clause would not be weakened very much if paragraph (a) were removed. If paragraphs (b) and (c) were left, the clause would still be pretty wide, but there would not be the possibility of something incredibly burdensome.

I remind the Minister that we are talking about an ex parte application to a judge in chambers, in respect of which the financial institutions will not have the opportunity to attend and object. The application will be made in private at the insistence of the state, whenever that situation arises. We must be careful that the Government do not make the legislation too wide.

I shall not pursue the matter, but the Minister and her advisers must reflect further on the matter, because we could, and perhaps should, return to it later, given that the Government are not giving any ground on a point on which we strongly feel that they have gone too wide.

Bill Wiggin (Conservative, Leominster)

Perhaps I should have spoken earlier on the issue. I have a great deal of sympathy with the Minister; if I were in her position, I think that I would defend the brief in just as stalwart a fashion.

I also appreciated the argument advanced by the hon. Member for Somerton and Frome, because paragraphs (b) and (c) cover the gamut of financial institutions—and paragraph (a) seeks to cover them, too. We have an impasse in some senses, because all financial institutions can be picked up. The difference, and the Minister put it well, is that the provision requires us to think about the process, rather than use a broad-brush stroke. It is that extra thinking that we need in our legal system, because it protects not only the smaller financial institutions, but the sensitive institutions, particularly in our country. Such institutions are price-sensitive and—

Alan Hurst (Labour, Braintree)

Order. The hon. Gentleman's intervention is too long.

Nick Hawkins (Conservative, Surrey Heath)

I am grateful to my hon. Friend the Member for Leominster, because I understand that he, like me, brings past expertise to the matter. As my hon. Friend says, the Government and the Opposition are at an impasse. I shall not pursue the matter today, but tell the Minister seriously that we may have to

return to it later, and I hope that she will reflect on the issue. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Nick Hawkins (Conservative, Surrey Heath)

I beg to move amendment No. 90, in

clause 33, page 20, line 11, leave out paragraph (c).

Alan Hurst (Labour, Braintree)

With this it will be convenient to discuss the following:

Amendment No. 92, in

clause 35, page 20, line 40, leave out from 'apply' to 'for' in line 41.

Amendment No. 95, in

clause 36, page 21, line 31, leave out paragraph (c).

Nick Hawkins (Conservative, Surrey Heath)

The amendments address a point that is, to some extent, similar to one that we dealt with a few minutes ago in relation to the Secretary of State's powers. Amendment No. 90 would amend clause 33, and amendments Nos. 92 and 95 would amend clauses 35 and 36 respectively to the same effect. We are saying that it should be a senior police officer who takes a stance under the clauses, and want to delete clause 33(4)(c), which says:

''a constable authorised by a senior police officer to make the application''.

It is perfectly reasonable for senior police officers, but not mere constables, to deal with the matters in the clauses. We are talking about quite significant issues. As I said earlier, we are talking about a draconian provision; surely the power should be restricted to senior officers. I hope that the Minister will understand that small but important point. I will listen with interest to what she has to say.

Caroline Flint (Labour, Don Valley)

The amendments would prevent a constable from being able to apply for customer information orders or account monitoring orders on the instruction of a senior officer. The senior officer would have to apply for the order in person, whatever the circumstances of the case.

Under the present drafting, the constable can apply only for customer information orders or account monitoring orders on the instruction of a senior officer; he cannot make an application off his own bat. The senior officer will always be accountable for the decision to seek the order, but will not have time to go to court to make the application in person. Requiring applications for CIOs or AMOs always to be made by a senior officer would impose a disproportionate burden on the police and would not be a sensible use of senior officers' time. Clause 46 states that a senior police officer must be of at least superintendent rank.

The drafting of the Bill follows existing practice, as constables already have similar powers in relation to money laundering investigations under section 378 of the Proceeds of Crime Act 2002, which defines constables as ''appropriate officers''. Furthermore, it is likely that the request for an order will arise from an ongoing investigation, of which it is likely that the constable, not the senior officer, will have in-depth knowledge. If a case arises in which it is appropriate

for a senior officer to make the application, the present drafting allows the flexibility for that to happen.

David Heath (Liberal Democrat, Somerton and Frome)

Will the Minister confirm what I believe to be the case, which is that the constable referred to does not necessarily mean a person holding the rank of constable, but merely a person holding the office of constable, that is to say, to any officer up to the rank of superintendent?

Caroline Flint (Labour, Don Valley)

I can confirm that that is correct.

Given that we think that it is right that a constable should be able to apply for an order on the authorisation of a senior officer, it follows that they should also be able to make an application to discharge or vary an order. An order may be discharged or varied if, for example, the requesting authority no longer requires the information or is able to narrow down the banks from which information is sought—possibly on the basis of additional information obtained from other aspects of its domestic investigation.

This is about ensuring that there is the safeguard that a senior officer authorises the instruction: we do not want to delay investigations by creating a bureaucratic and time-consuming process.

Nick Hawkins (Conservative, Surrey Heath)

I hear what the Minister says, and I will not pursue the matter further today. We wanted the Minister to confirm on the record what the position was, and she has done that. Therefore, at this stage, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 33 ordered to stand part of the Bill.

Clause 34 - Offences

Nick Hawkins (Conservative, Surrey Heath)

I do not want to take up too much of the Committee's time, but when I was researching this part of the Bill again last night, it occurred to me that, with regard to this clause, I should have tabled an identical amendment to amendment No 148, which I tabled to a later counterpart clause—clause 39. I simply wanted to put that on the record, so that the Minister can see that I was inadvertent in not doing so. When we come to discuss amendment No. 148 to clause 39, we will be able to discuss similar issues to some that apply to clause 34. I do not seek a reply from the Minister on that at this stage.

Question put and agreed to.

Clause 34 ordered to stand part of the Bill.

Clause 35 - Account information

Nick Hawkins (Conservative, Surrey Heath)

I beg to move amendment No. 93, in

clause 35, page 21, line 9, leave out subsection (6).

The purpose of the amendment is to delete subsection (6), which states:

''An account monitoring order has effect in spite of any restriction on the disclosure of information (however imposed).''

This goes back to the point that we were discussing earlier, when I said to the hon. Member for Somerton and Frome and the Minister, when she was suggesting that there was some kind or protection in the Data Protection Act 1998, that I do not think that it does that.

In relation to this part of the Bill, this is the occasion when we say that if subsection (6) were to stand, it would be too wide. There ought to be protections of the customer's privacy. I hope that the Minister understands that we wish to probe this matter. Members on the Opposition Benches would be interested to hear what she has to say about protection of customer privacy. The significance of that is that in this country the privacy of banking customers has always been sacrosanct. There are understandable reasons why, in trying to tackle international financial crime, the Government have to infringe on that traditional privacy to some extent, but we do not want them to be able to do so too widely, and this subsection goes too wide. I hope that the Minister understands that a balance must be struck. We want to strike it differently.

Caroline Flint (Labour, Don Valley)

On the account monitoring order, various procedures would have been necessary to reach the point where such an order would be sought. We have discussed serious criminal investigations.

As the hon. Member for Surrey Heath said, clause 35(6) states that an account monitoring order

''has effect in spite of any restriction on the disclosure of information (however imposed).''

That provision is replicated in clause 40 for account monitoring orders in Scotland, and in clauses 32 and 37 for customer information orders. It directly replicates sections 368, 374, 402 and 407 of the Proceeds of Crime Act 2002, which makes identical provision in relation to customer information orders and account monitoring orders made under it.

The purpose of this provision is to require a financial institution to provide the information specified in the order: requirements for information made under the powers of investigation take precedence in spite of any restriction on the disclosure of information. Banks are therefore able and required to breach customer confidentiality and provide the requested information to the court in response to a lawfully made order.

The provision is necessary because otherwise financial institutions could use customer confidentiality as a reason not to accede to customer information or account monitoring orders. That would make such measures weak investigative tools and frustrate the purposes of the protocol.

Customer information orders are compatible with the European convention on human rights. Section 6(1) of the Human Rights Act 1998 imposes an obligation on courts to comply with the convention rights. In exercising its discretion in making an order, a court has to consider its obligations under the 1998 Act and be satisfied that an order is lawful in each case. The 1998 Act applies to all legislation, and ECHR rights do not need repetition in Bills to take effect. The obligation on a bank to disclose

information as a result of a lawfully made court order will not contravene the ECHR. Unless the provision goes ahead, the reason for having the protocol and the powers in the Bill in the first place will be frustrated.

Nick Hawkins (Conservative, Surrey Heath)

I hear what the Minister says and I shall not pursue the matter further this morning. It has been helpful to have her remarks on the record. At this stage, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 35 ordered to stand part of the Bill.

Clause 36 - Making, varying or discharging account monitoring orders

Nick Hawkins (Conservative, Surrey Heath)

I beg to move amendment No. 94, in

clause 36, page 21, line 17, after 'into', insert 'serious'.

Alan Hurst (Labour, Braintree)

With this it will be convenient to discuss the following:

Amendment No. 97, in

clause 41, page 23, line 12, after 'into', insert 'serious'.

Amendment No. 98, in

clause 44, page 26, line 4, at end insert 'serious'.

Amendment No. 99, in

clause 44, page 26, line 12, after 'into', insert 'serious'.

Nick Hawkins (Conservative, Surrey Heath)

Amendments Nos. 94 and 97 go together, because amendment No. 97 would have the same effect on clause 41 for Scotland as amendment No. 94 would have on clause 36. Amendments Nos. 98 and 99 would have the same effect on clause 44.

Opposition Members suggest that the powers should apply only to investigations into serious criminal conduct. An important point is involved. A great deal of criminal conduct is low level. Although it is still crime and still important, and nothing that I say will suggest that it should not be investigated, we are talking about a quite serious erosion of customers' privacy and the banker-customer relationship of privacy and confidentiality. That should not be eroded unless the criminal conduct being investigated is serious.

We all understand that, if there is major international financial fraud, there has to be a way in which the state has power to look into customers' accounts. However, we do not want the Bill to become a state snooper's charter. That goes back to the point made by my noble Friend Viscount Bridgeman in the debate in another place to which I referred earlier. We want to ensure that there cannot be massive fishing expeditions by the forces of the state. We want to support the work of the police, but the way in which we can protect the traditional banker-customer relationship of privacy and confidentiality is by ensuring that it is eroded or impinged on by the Bill only if serious criminal conduct is being investigated. That is why we say that it would be an important protection to insert the word ''serious''.

I hope that the Minister will not resist the amendment, because it would provide clarification in the Bill to keep the balance right and a sense of

proportionality. The Minister's predecessors as Home Office Ministers were often given briefs that said, ''We need to keep a sense of proportion.'' Proportionality has been a buzzword for Ministers in this Government. Opposition Members say that if the word ''serious'' were inserted in the Bill as a restriction, so that an investigation could take place only when serious criminal conduct was being examined, a sense of proportion would be kept. As I said, I hope that the Minister will accept the amendment.

Caroline Flint (Labour, Don Valley)

This group of amendments would impose a requirement that requests for account monitoring orders be limited to investigations into serious criminal conduct. Such conduct is defined in clause 46(3). That is included to provide a definition for the serious forms of criminality specified in article 1(3) of the protocol.

During negotiation of the protocol, it was recognised that requests to trace accounts would place significant demands on the resources of banks in countries without central registers of accounts and that there was therefore a need for proportionality between the crime in question and the measure requested. The protocol explicitly states that the obligation to assist under article 1 is limited to those cases that we have for simplicity described as those involving serious criminal conduct.

However, a parallel restriction in relation to account monitoring is not appropriate. Requests for monitoring will be targeted at an already identified account, so they will not place such a burden on banks. Also, we can already provide historical details of activity in identified accounts in response to overseas requests, even without the new legislation. The article does not oblige us to agree to all account monitoring requests and the clauses are drafted so that we can keep a degree of discretion. We are obliged only to assist in accordance with our international obligation. Therefore we can impose any restrictions upon provision of the assistance provided that they are not contrary to that obligation. Account monitoring requests will be subject to general considerations, such as proportionality, and the Secretary of State may refuse to execute the request if he does not think that monitoring of an account is appropriate. In our view the present drafting maintains sufficient discretion while still ensuring that we can meet our international obligations, and enables us to request assistance in a wide range of circumstances.

Nick Hawkins (Conservative, Surrey Heath)

I was slightly surprised not to hear the hon. Member for Somerton and Frome speak on the amendment, not least because his noble and learned Friend Lord Goodhart initiated some of the debates in another place. Perhaps the Liberal Democrats have decided this morning that they will not contribute.

David Heath (Liberal Democrat, Somerton and Frome)

Is it not possible that the hon. Gentleman's argument was sufficiently adequate for it not to be necessary for me to speak?

Nick Hawkins (Conservative, Surrey Heath)

I am grateful to the hon. Gentleman, and if that is the case, I am flattered.

The Minister has reassured us. There has been quite a lot of debate on the matter, involving not only Lord Goodhart, but a number of my noble Friends, including Viscount Bridgeman and Lord Renton. There is an important point to be made, but I hear what the Minister says about the fact that we are discussing account monitoring of an already identified account. In the light of that, I do not seek to pursue the argument again today. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 36 ordered to stand part of the Bill.

Clauses 37 and 38 ordered to stand part of the Bill.

Clause 39 - Offences

Nick Hawkins (Conservative, Surrey Heath)

I beg to move amendment No. 148, in

clause 39, page 23, line 12, at end insert

'but

(c) for the avoidance of doubt, if a member of staff of the financial institution passes on a statement which turns out on later analysis to be false or to have given a misleading impression, but this has been caused merely by negligence or inadvertence the financial institution shall not be guilty of an offence'.

We have now reached the amendment that I mentioned when I spoke briefly in the stand part debate on clause 34, during what I suppose was almost a point of order. I reinforce the point that the amendment should probably apply to both clauses 34 and 39, but that is my fault.

The amendment would insert an avoidance of doubt provision into the Bill. It is clear that there could be grounds for a criminal offence if a financial institution or its staff deliberately tried to mislead the prosecuting authorities or acted recklessly by providing incorrect information. However, it is important to make it absolutely clear in the Bill that mere carelessness will not lead to criminal prosecutions of, in some cases, quite junior staff.

Stephen Hesford (Wirral, West) rose—

Nick Hawkins (Conservative, Surrey Heath)

I will give way to the hon. Gentleman in a moment.

My hon. Friend the Member for Leominster and others who have worked in the banking industry as lawyers or in any other capacity will know that much of the gathering of information about individual accounts is necessarily undertaken by relatively junior staff. We do not want those people worrying about facing criminal prosecution if they make a genuine error. I am sure that the Minister will say, ''Of course we would not prosecute if it was simply an error.'' However, banking matters are complex, and it is often difficult to establish the basis for an error. Prosecution would be acceptable only if it could be established that someone had either deliberately set out to mislead or been reckless as to whether they did so.

Mr. Wiggin indicated assent.

Nick Hawkins (Conservative, Surrey Heath)

I am glad to see that my hon. Friend the Member for Leominster nods.

Stephen Hesford (Labour, Wirral West)

The hon. Gentleman will recall, as I do, our consideration of the Proceeds of Crime Bill. He revisits the scene of a crime that we in Government thought that the Opposition were committing on that Bill. If clauses such as this had been inserted into the Proceeds of Crime Bill, which is now operating successfully, they would have sought to water down their effect. The current situation is the same—the amendment would water down the effect of the Bill, and I ask my hon. Friend the Minister to resist it.

Nick Hawkins (Conservative, Surrey Heath)

The hon. Gentleman is right—he, I and others considered that Bill, including my hon. Friend the Member for Beaconsfield (Mr. Grieve) and the hon. Member for Glasgow, Pollok (Mr. Davidson), who enlivened the proceedings. He is right that we had similar discussions, but I did not agree with him then and I do not agree with him now. There must be a sense of balance. We are trying not to water down legislation, but to provide the sort of protection that is needed by relatively junior employees of banking institutions.

From the discussions that I have as deputy chairman of the all-party group on insurance and financial services, I know that there is great concern among those who lead the trade unions in the banking sector about such legislation. The cross-party officers of the all-party group recently held a working dinner with the leadership of all the unions in the sector, and all expressed concerns about the way in which legislation might affect relatively junior members of staff, if some sense of proportionality was not maintained. That is why I tabled the amendment.

The hon. Member for Wirral, West (Stephen Hesford) and I both have legal qualifications. When studying criminal law, he will have been taught about the difference between someone who has a criminal mind—mens rea—and someone who has not. One of the basic principles underlying most criminal law is that if someone is merely careless or negligent, they are not committing a criminal offence. For the purposes of most criminal offences, there must be deliberation or recklessness, although there are some exceptions.

We are discussing the introduction of new criminal offences that can affect financial institutions and members of their staff, and our contention is that a financial institution should not be convicted of a new criminal offence, if the mistake that has been made is careless or negligent, although we can accept prosecution if the action was deliberate or reckless. The provision goes too far. I do not think that we are watering the clause down. I hope that the Minister will reflect carefully on the fact that we are trying to introduce into the legislation the basic principles that underlie most of our criminal law.

David Heath (Liberal Democrat, Somerton and Frome)

Let me bring to bear all the legal ignorance that I can muster. The point that the hon. Gentleman made about negligence or inadvertence is a good one. On the face of it, that appears to be covered by the words that describe the offence, because subsection (3)(a) requires that the statement must be known

''to be false or misleading in a material particular'',

or that it has been ''recklessly'' made.

My concern is the corporate offence that will be established by the clause. I want to know how one establishes mens rea in respect of an institution, and I hope that someone who is more of a legal mind than me can explain it. What is meant by ''the institution''? How does an institution, rather than a responsible individual in that institution, know that something is false or misleading? How is an institution ''reckless'' other than when the directors, the financial director or someone responsible for the offence are reckless?

That seems to be a more cogent problem in prosecuting the offence, and I would hate the clause to be meaningless. I am sure that the Minister has specific guidance at her disposal that says that I am barking up the wrong tree. Indeed, the hon. Member for Wirral, West can probably enlighten me in advance of any such advice.

Stephen Hesford (Labour, Wirral West)

The hon. Gentleman is applying himself to the wrong issue and has answered his own question. The provision is attached to the guiding mind of the institution and the offences are designed to ensure that those who guide an institution—the directors, for example—have proper lines of supervision as well as procedures in place to prevent their staff from doing exactly what the offences are designed to prevent them from doing.

David Heath (Liberal Democrat, Somerton and Frome)

I understand the hon. Gentleman's point, but the institution, rather than an individual within it, which applies even to those who form its board of directors, will be guilty of an offence.

However, the hon. Gentleman's point partly answers that made by the hon. Member for Surrey Heath. For the purposes of prosecution, it will have to be shown that either a deliberate attempt to mislead or a reckless disregard for whether a statement is correct is the responsibility of a senior person in the organisation rather than a junior member of staff, to whom the hon. Gentleman referred, who may have made a statement in error.

I am still not entirely happy with that, as the responsibility is not explicit, but that may be because I do not know enough about corporate law to understand how the offences are normally framed. Either way, it would be helpful for the Minister to give some indication of how she expects the clause to be interpreted. That would go a long way towards allaying the concerns that the hon. Member for Surrey Heath has rightly raised about the position of a junior member of staff. In doing that, she may be upping the stakes with different institutions' structures and their responsibility to have in place systems that do not allow for the negligent error about which the hon. Gentleman is concerned.

I look forward to the Minister's comments. This may be a point to which we have to return in an attempt not to weaken the offence or the grounds for it, but to tighten its application and ensure that everyone understands their responsibilities.

Caroline Flint (Labour, Don Valley)

We have had a useful debate, and I assure all Members that an institution, rather than an

individual, will be liable under the clause and clause 34. The sanctions in those clauses will apply only to institutions and the provisions on offences match those in section 366 of the Proceeds of Crime Act 2002. The Government intend that the same circumstances should apply under both pieces of legislation, because they both require financial institutions to respond to customer information orders. The provisions should be identical to avoid any confusion or different interpretation of the two laws. I am satisfied that the clause makes that position clear.

Under subsection 3(a), a financial institution will be guilty of an offence if it makes a statement that it knows to be false or misleading—that is, it deliberately provides false or misleading information. That is straightforward. Under subsection 3(b), it will be guilty of an offence if it recklessly makes a statement that is false or misleading. If a financial institution complies with an order, following correct procedures and all legal requirements regarding verification of information, for example, yet it later transpires that, despite those measures, the information was false or misleading, it will not be guilty of an offence.

We do not consider that there is any doubt about the effect of the clause or the circumstances in which financial institutions are guilty of an offence, so there is no need for an amendment. As my hon. Friend the Member for Wirral, West said, a company may be held liable by its directors. The prosecution would have to prove that the institution was acting recklessly. The same offence could apply to environmental protection, for example.

We are not establishing a new offence; it is covered by the Proceeds of Crime Act 2002. Given the nature of the debate and the banking industry's engagement with the Bill as well as the serious safeguards when pursuing a customer information order and, for that matter, an account monitoring order, there would be an onus on the banks to ensure that any information that they had passed on was not left to junior clerks, but that they had sufficient safeguards in their organisations to ensure that they could stand by the information they provided.

Nick Hawkins (Conservative, Surrey Heath)

I hear what the Minister says—we understand that such an offence would be committed only by the institution. The point that the banking unions were making to me and other members of the all-party committee on insurance and financial services is that junior members of staff worry about the burdens on them. I see the Minister nodding, so she understands my point. Pressures are created if junior members of staff know that a mistake that they might make could lead inadvertently to their bank being prosecuted.

I shall not pursue the matter further, although we shall return to it when we discuss other amendments. We have expressed worries on behalf of financial institutions. As the Minister is aware, several matters raised in another place by my noble Friend Viscount Bridgeman were inspired by the British Bankers

Association. It is not as though the Government can say that they are taking the financial institutions with them each step of the way. The institutions are worried that the Bill is too wide in its application and too draconian. However, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 39 ordered to stand part of the Bill.

Clause 40 - Account information

David Heath (Liberal Democrat, Somerton and Frome)

I have a simple question. I understand how the Scottish parts of the Bill relate to the English. This part relates to banking transactions in England and Scotland, but there are not separate incorporation banks working in both jurisdictions. Does anything in the Bill restrict the requests of the procurators fiscal to only those transactions that take place in Scotland, as opposed to a financial institution working in Scotland that also works elsewhere and transactions that may take place elsewhere? I am not sure that that is the case.

I hope that I am making myself clear to the Minister. As I understand it, there is no territorial restriction on the English, Welsh or Irish parts of the Bill, save for the italic title above clause 37. I am not clear whether there is a restriction on the position of the procurators fiscal and Lord Advocate in respect of Scotland or the Secretary of State and prosecuting authorities in respect of England and Wales.

Caroline Flint (Labour, Don Valley)

The clause is the Scottish equivalent to clause 35. It fulfils the same function as that clause in the rest of the United Kingdom, making provision when needed to reflect Scottish procedures, such as that in respect of political orders made by the procurators fiscal to a sheriff. I will follow up the question and give the hon. Gentleman a fuller answer over the next few days.

Question put and agreed to.

Clause 40 ordered to stand part of the Bill.

Clause 41 ordered to stand part of the Bill.

Clause 42 - Offence of disclosure

Nick Hawkins (Conservative, Surrey Heath)

I beg to move amendment No. 149, in

clause 42, page 24, line 23, after 'institution', insert

'improperly and deliberately or recklessly'.

Alan Hurst (Labour, Braintree)

With this it will be convenient to discuss amendment No. 150, in

clause 42, page 24, line 23, after 'discloses', insert

'causing subsequent difficulty in proceedings in the UK or elsewhere'.

Nick Hawkins (Conservative, Surrey Heath)

The amendment deals with an issue that I raised earlier. For the avoidance of doubt, we seek to bring into the Bill the matter of the guilty mind—the mens rea. It should be made clear that an offence committed by a financial institution would have to be dealt with on the basis that there had been a

deliberate or reckless act. There is no such restriction in the clause. In respect of the clause that we debated previously, the Minister was at least able to refer to words that made that reasonably clear, and we seek only to introduce an avoidance of doubt provision. We want to include ''deliberately or recklessly''.

Amendment No. 150 would deal with a slight variant of a similar point. There must be consequences, such as a financial institution facing criminal prosecution, for there to be an offence. Surely the prosecution would have to establish that there had been difficulty caused in proceedings, either in the UK or elsewhere. Returning to first principles of the law, if no harm has been done and there are no adverse consequences, why should a financial institution face prosecution?

Stephen Hesford rose—

Nick Hawkins (Conservative, Surrey Heath)

I will give way to the hon. Gentleman in a moment. Before I do, perhaps I may elaborate briefly.

In civil law—a different field—if a party is at fault they would normally have to pay damages only if they were seen to have caused some financial loss or other damage. A court might, even in contempt proceedings, make an order that a party that caused the problem should pay what are called the costs thrown away. Normally, in most areas of the law, some adverse consequence should be shown—for example, before a criminal prosecution or before any damages are awarded in civil cases. If no harm is done, why should there be a prosecution? I hope that the Minister understands the serious point we are making.

Stephen Hesford (Labour, Wirral West)

I am obliged to the hon. Gentleman for giving way. He is generous in debate.

On amendment No. 150, the hon. Gentleman referred to ordinary, general principles and asked whether those ought to apply. One would not know in advance whether damage would be caused down the line. If, by the time somebody was prosecuted, it turned out that no damage had been caused, that would be substantial mitigation and it would go towards the correct penalty. If the information that no damage had been caused came sufficiently early in proceedings, it might affect the decision on whether to prosecute. Those are the ordinary, general principles. With respect, his amendment is unnecessary.

Nick Hawkins (Conservative, Surrey Heath)

I understand the hon. Gentleman's point about the Bill remaining unamended. No doubt, the decision on whether to prosecute might be influenced if it were shown that there had been no damage, but there would be no guarantee that there would not be a prosecution, even if no damage were caused. There would be nothing in the Bill to say, ''Do not prosecute if no damage was caused''.

The hon. Gentleman and I take a different view on the matter. He is right to say that if there were to be a prosecution and the defence was saying, ''Well, there was no consequence from this—there was no damage,'' that would be a point put in mitigation. We stick to our approach, however, which is that it would be far better if it were clear in the Bill that if no damage is caused and there are no adverse

consequences to the mistaken information supplied, there should be no question of prosecution. If that were in the Bill, institutions and their staff, who worry about such things, would be better protected.

David Heath (Liberal Democrat, Somerton and Frome)

There are two amendments in the group. The first relates to a matter that we have already dealt with, and I suspect that the Minister's answer will be the same.

I do not agree with the hon. Member for Surrey Heath on his second amendment. In fact, I am slightly alarmed by it. We are talking about not only an inadvertent or incorrect disclosure, but blowing the gaff on the investigation. It is impossible to work out what the difficulties in the proceedings would be because, as a result of the disclosure, the action that would have been taken might not go ahead. Therefore, the financial transaction that might have been made, and that might have produced substantial evidence in pursuit of an investigation, would not take place. One cannot prove that, however. It is impossible to do so, because it means proving a negative in the absence of evidence.

Although I do not like absolute offences, in this instance there are equivalents elsewhere in law. It must be made absolutely clear that proceedings on the basis of disclosure of the fact that an investigation is taking place, and therefore the jeopardising of it, should not rely on the extent of the damage and proving the offence. I think that the hon. Gentleman is wrong in this instance.

Caroline Flint (Labour, Don Valley)

I welcome the views of the hon. Member for Somerton and Frome and those of my hon. Friend the Member for Wirral, West. They have demonstrated the problems with the amendments. The clause would ensure that financial institutions did not disclose the existence of a customer information or account monitoring order, or a request for banking information made under article 2 of the protocol, to any party in any circumstances. Clause 42(3)(a), (b) and (c) define what information should and should not be provided. We had a debate about those involved in the process, and we have to be clear on this aspect of it. It would totally undermine the point of seeking the customer information and account monitoring orders if we alerted a potentially dangerous criminal to our activities. To that end, we cannot accept the amendments.

The provision is designed to implement article 4 of the protocol, which requires member states to

''take the necessary measures to ensure that banks do not disclose to the bank customer concerned or to other third persons that information has been transmitted to the requesting State in accordance with Articles 1, 2 or 3 or that an investigation is being carried out.''

Committee members have made the point that it is often not clear at the outset what information may be pertinent to a later inquiry. We know how sophisticated, technical and complicated financial information is.

We are satisfied that the drafting, which will impose a specific ban on disclosure, represents the most appropriate and effective means of implementing the protocol obligation. Under the protocol, it does not

matter whether or not the disclosure is deliberate or reckless. Disclosure must be prevented. If we are not clear about the matter, people could form their own interpretation of what is reckless or deliberate. We need clarity. Nor can we restrict the liability to when disclosure causes difficulty in UK proceedings.

It is imperative that information is not disclosed that could hinder overseas proceedings, or indeed an investigation here or elsewhere. For example, if a bank employee informed a customer who was a suspect in a money laundering investigation that their account was subject to a monitoring order, that would negate the purpose of the monitoring—obtaining evidence of the offence—as they would know not to use the account during the monitoring period. It is essential that the Bill has strong and effective safeguards, but also that we are clear about the fact that there is no room for misunderstanding. That would be particularly beneficial to those serving in banks who may be asked to get involved in such an order and gaining information.

Nick Hawkins (Conservative, Surrey Heath)

There is a difference of opinion between myself and the Minister and the hon. Member for Wirral, West—and, in relation to one of our amendments, there is a difference of opinion with the hon. Member for Somerton and Frome.

I will not pursue the matter further this morning. We have made our point, and it is useful to have some of the Minister's assurances on the record. Therefore, at this stage, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 42 ordered to stand part of the Bill.

Clause 43 - Information about a person's bank account

Nick Hawkins (Conservative, Surrey Heath)

I beg to move amendment No. 151, in

clause 43, page 25, line 43, at end insert—

'(8) Where any bank or financial institution contacts any of its customers holding a bank or financial account or accounts, they shall not request customer information alleging they require it for legislative or investigative reasons when they actually want it for marketing'.

This is my reassurance to the hon. Member for Wirral, West and other Committee members that, despite my background, I will not always be putting forward proposals on behalf of banks and financial institutions, because there are times when we would all accept that they go too far.

With regard to another recent piece of legislation, we had a debate with the Minister's predecessor, the hon. Member for Coventry, North-East (Mr. Ainsworth), about the problems that some banks and financial institutions have caused to constituents throughout the country. They have misused some of the provisions of the proceeds of crime legislation to enable them to get information by using that legislative framework as a cloak when they actually wanted the information not for the

investigation or prevention of crime but for marketing reasons.

There was such a case in my constituency. It involved a local charity—I am sure that all Members have local charities in their constituencies. This charity—the Windlesham United Charities and Poors' Allotments—has done a great deal of valuable work in my constituency over many years. The secretary to the trustees of the charity is a lady who is well known for her good work in my constituency. Her name is Doris Christie, and she has been honoured for her charity work. She saw me at one of my surgeries to draw attention to the fact that the bank with which the charity had an account was asking for information which I, having been the shadow Minister on the proceeds of crime legislation, happily knew went far beyond the legislative requirements. When we finally got to the bottom of things—after much strongly worded correspondence from me—the bank admitted that some of the information that it was seeking about the trustees' personal details went beyond the legislative requirements and was simply required by it for marketing purposes.

Therefore, I have had experience of how previous legislation has been working. The hon. Member for Wirral, West and others might recall that when my hon. Friend the Member for Beaconsfield and I were leading for the Opposition on the proceeds of crime legislation, we expressed worries that it might be misused—that it might sometimes be used as a sledgehammer to crack a nut. I have seen a subsequent example of how some of the requirements have been misused.

I hope that the Minister will understand that Opposition Members do not always defend everything that banks and financial institutions do. I felt that it might be helpful to introduce a correction into this Bill to make it clear that banks and financial institutions, while they should be encouraged to help the Government, police and prosecution forces generally to investigate crime, must not misuse their powers and start trying to seek information that they use purely for marketing purposes under the cloak of this Bill, the Proceeds of Crime Act 2002, or any other legislation.

David Heath (Liberal Democrat, Somerton and Frome)

In a genuine spirit of inquiry, I wonder why the hon. Gentleman tabled this amendment to the clause, which appears primarily to deal with banking transactions outside the United Kingdom, rather than inside it. I wonder whether overseas banks would be more likely to use this ploy than banking institutions in this country.

Nick Hawkins (Conservative, Surrey Heath)

The hon. Gentleman's last point was one of the things that I had in mind. However, in response to his genuine inquiry, I was in not one or two, but several minds about where to insert the amendment. I was relieved that the Clerk and the Chairman regarded the proposal as being in order and that it was on the amendment selection list. While I may not have chosen the most perfect place in the Bill to insert the amendment, at least it was selected. To that extent, I am pleased to have had the chance to pass on the worries of my constituents.

If other members of the Committee have not yet experienced such a problem, they will. Small charities are worried about these matters. People who administer them are receiving onerous requests for personal information. While the particular local charity that I have mentioned has been the most obvious case, similar issues have been raised with other hon. Friends who are members of the all-party insurance and financial services group. I hope that the Minister will understand where I am coming from and that she can give me a helpful response.

Caroline Flint (Labour, Don Valley)

Let me clear up any confusion. When the Bill was discussed on Second Reading, the hon. Member for Surrey Heath expressed worry about alleged practices by some banks when obtaining inappropriate information from their customers, but here is not the place to discuss such matters. I am not sure that they have anything to do with the Bill.

However, the amendment is listed on the selection list, and I want to clarify a few points. There is no question of a bank or financial institution contacting its customers about any of the requests made under chapter 4. Indeed, they will be guilty of an offence if they disclose the existence of a request or an investigation, let alone if they disclose it to the customer in question. The Bill does not create a new obligation on banks about the records that they hold about its customers. Its purpose is to find out information about an existing account, pursuant to criminal investigations, not to find out new information about the individual. It is about gaining access to a person's financial records. That is the purpose of the customer information and account monitoring orders. If banks were to contact their customers about anything else, they would be guilty of the offence of disclosing the existence of a request for an investigation or of, at least, putting that investigation in jeopardy.

To include a provision along the lines of that proposed by the amendment would be inappropriate. Clause 43 regulates outgoing mutual legal assistance requests from the United Kingdom to identify and provide details of accounts that are held overseas. It deals with requests from UK prosecuting authorities to overseas judicial authorities, which they will execute in the way most appropriate to their law. In France, for example, there will be no need to involve banks at all in requests to identify accounts, because it has a central register of bank accounts. While I appreciate that the hon. Gentleman has more general worries, I hope that he will withdraw the amendment in light of my comments.

Nick Hawkins (Conservative, Surrey Heath)

The Minister has been helpful. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

David Heath (Liberal Democrat, Somerton and Frome)

I have a question for the Minister. I had intended to table an amendment about the matter, but I forgot. The term used for requests outside the United Kingdom to this country is ''financial institutions''. In the case of requests from the United Kingdom to other participating countries, the term is ''banks''. Why is

there such a difference? Are we not applying an artificial restriction to the financial institutions from which we can request information? As we know, financial institutions take many forms, which is why we have them in our part, as it were, of the Bill. Many companies that operate in a similar way to banks in other countries may be differently incorporated.

The Minister mentioned France, and it is interesting that there is a central collection of banking information there. It occurred to me that some of the major ''banks'' in France are in fact mutual societies and credit unions. I do not know whether they would come under the definition of a ''bank'' as specified in clauses 43 and 44. My question is, why do we use the term ''financial institutions'' when we talk about those in this country, but ''banks'' when we talk about the same thing in other countries? That does not seem consistent. Indeed, it is potentially dangerous in terms of a challenge if information from another country comes from a financial institution that is not a bank.

Caroline Flint (Labour, Don Valley)

I thank the hon. Gentleman for raising that question. It needs to be answered. I shall ask officials to find an answer, and shall write to him before we finishing our proceedings.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful.

Question put and agreed to.

Clause 43 ordered to stand part of the Bill.

Clause 44 - Monitoring banking transactions

Nick Hawkins (Conservative, Surrey Heath)

I beg to move amendment No. 152, in

clause 44, page 26, line 8, leave out

'or justice of the peace'.

We on these Benches yield to no one in our admiration for lay magistrates. The Minister and other Committee members will be aware that we are constantly trying to promote the interests of justices of the peace, and complaining that the Government have closed so many magistrates courts and moved us away from local justice. However, certain areas of the law have not traditionally been regarded as appropriate for lay magistrates. It is therefore important to state that this particular matter should be dealt with by a sheriff in Scotland, by a judge or resident magistrate in Northern Ireland and by a judge in England and Wales. Despite our admiration and support for JPs, we do not think it appropriate for them to be given this particular power.

JPs have a vital function in dealing with a huge number of cases of all kinds, but they deal with those at the lower end of the spectrum of offences. If we are talking about judicial authorities in the UK acting on behalf of the state, it is not appropriate to include JPs.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. Gentleman is right to probe the reason why the judicial authority in this instance can be a justice of the peace, because we are talking about an intrusive procedure. It goes beyond a basic warrant, which is the usual ceiling for requests outwith the judicial authority, and in other circumstances only those above a magistrate, such as a circuit judge,

would become involved. I would be grateful if the Minister made her position known to us.

There is a time lag or at least an inconsistency in judicial nomenclature between the Home Department and the Department that used to be called the Lord Chancellor's Department. For instance, Northern Ireland has both resident and lay magistrates. The latter are the equivalent of the justices of the peace in England and Wales, and yet they are not to have the power to make the request. That does not seem entirely logical. It would have been logical before the Justice (Northern Ireland) Act 2002, but there is now the creation of the lay magistrates, although they do not yet exist.

Alan Hurst (Labour, Braintree)

Order. I am sure that the hon. Gentleman would like to redirect himself back into order by addressing the amendment.

David Heath (Liberal Democrat, Somerton and Frome)

Yes. I was exploring the meaning of the term ''justice of the peace'' in the context of the clause, Mr. Hurst, and how that term is understood in the various jurisdictions of the United Kingdom. I hope that I kept myself in order, but because there is a serious danger of straying beyond the terms of the amendment, I shall sit down and listen to what the Minister has to say.

Caroline Flint (Labour, Don Valley)

The effect of the amendment would be that outgoing requests for account monitoring orders could not be dealt with in the magistrates court. We do not accept the amendment. The Government have made the point under other clauses that, in general, we consider the magistrates court entirely capable of considering and dealing with requests for mutual legal assistance, both incoming and outgoing. Magistrates courts have many years of experience in mutual legal assistance, and we have not heard any strong arguments for changing this practice.

There is no need to restrict outgoing requests to monitor accounts to higher courts; such requests are just another, albeit specialised, type of mutual legal assistance request. Magistrates courts can deal with outgoing requests under clause 7 and, in the interests of consistency, the same approach should be adopted here. Furthermore, it is entirely possible—and likely—that a request for monitoring will involve a request for other types of mutual legal assistance, such as the provision of historical information about the account. Those types of request are not new. The same court should be able to deal with all aspects of the request.

It should be noted that the majority of requests under the clause will be issued by designated prosecuting authorities themselves—that is, the Crown Prosecution Service, Her Majesty's Customs and Excise and the Serious Fraud Office.

The position in Scotland and Northern Ireland reflects normal existing mutual legal assistance arrangements. The magistrates court will act on behalf of prosecuting authorities, such as the Financial Services Authority, that cannot issue their own requests at present as they are not designated. We

will consult further, particularly on the question of Northern Ireland. The Court Service and the Northern Ireland Office have been consulted.

Nick Hawkins (Conservative, Surrey Heath)

I hear what the Minister says. I am grateful to the hon. Member for Somerton and Frome; he and I were involved earlier this week in a fascinating debate on a statutory instrument that dealt with what used to be called the Lord Chancellor's Department. The new Minister there got into terrible trouble with the hon. Member for Thurrock (Andrew Mackinlay) on the issue of lay magistrates in Northern Ireland. The hon. Member for Somerton and Frome and I were particularly conscious of his point—however, I must keep within order, too.

I hope that the Minister will realise that we are making a serious point. There is, of course, a judgment call to be made; the Government have come down on one side of the line and the hon. Member for Somerton and Frome and I are on the other. However, at this stage, I shall not pursue the matter further. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 44 ordered to stand part of the Bill.

Clause 45 ordered to stand part of the Bill.

Clause 46 - Interpretation of Chapter 4

Nick Hawkins (Conservative, Surrey Heath)

I beg to move amendment No. 100, in

clause 46, page 27, line 7, leave out paragraph (a) and insert—

'(a) an offence which requires a prison term of 10 years or more, or'.

Our amendment would replace reference to the protocol with a provision saying that ''serious criminal conduct'' was any offence carrying a sentence of 10 years or more. The Minister will be aware that the issue was debated in another place on 27 January. That debate is in column GC 144 and thereafter in Hansard in another place. My noble Friend Viscount Bridgeman made it clear that he was probing the issue, and we do the same again today. It would be helpful to know which other countries follow the guidelines in the protocol. Have the guidelines been amended? Could they be? Would it be helpful to have those guidelines listed in the Bill for the sake of clarity?

At the moment, ''serious criminal conduct'' is simply defined as an offence under the 2001 protocol or as

''an offence specified in an order made by the Secretary of State''.

We do not think that that is sufficient. The amendment would put in

''an offence which requires a prison term of 10 years or more''.

We might have chosen ''five years or more''. There was some discussion in another place about whether 10 years was the right level. There were some offences that ought to have been included but would not fall into that category. We wanted to probe the matter further, because we did not think that it got a tremendously thorough answer from Lord Filkin, who spoke for the Government. I hope that the Minister will respond to that.

Amendment No. 143, which was tabled by the hon. Member for Somerton and Frome, seeks to delete paragraph (b).

Alan Hurst (Labour, Braintree)

It is in the next group.

Nick Hawkins (Conservative, Surrey Heath)

I am sorry. I am working from a slightly out of date selection list.

Stephen Hesford (Labour, Wirral West)

Does the hon. Gentleman accept that the wording of his amendment is rather strange? It reads

''an offence which requires a prison term of 10 years or more'',

which means that someone would have to get 10 years or more. It does not say, ''An offence punishable by 10 years or more'', which would be the more general way of putting it. Even if there were some substance in what he was saying, does not his wording make it more difficult for the Committee to accede to the amendment?

Nick Hawkins (Conservative, Surrey Heath)

I understand the hon. Gentleman's point. The wording of our amendment in another place was

''an offence which carries a prison term of 10 years or more''.—[Official Report, 27 January 2003; Vol. 643, c. GC 144.]

Perhaps that form of words would have been better. I have said that I want to probe the matter. The hon. Gentleman understands that and I am sure that the Minister does, too. We do not suggest that the wording of the amendment is perfect. There is, however, a serious point, which is to probe whether we should have the offences set out in the Bill. I hope that the Minister will understand why we wanted to probe that matter.

I shall say no more, and listen with interest to the Minister's response.

Caroline Flint (Labour, Don Valley)

Clause 46, as drafted, defines serious criminal conduct in terms of offences listed in article 1(3) of the protocol. I stress that there are no guidelines. In fact, there is an obligation. That is the same for all states. The relevant offences are those punishable by a four-year custodial penalty in the requesting state and two years in the requested state, or offences referred to in the Europol convention or the convention on the protection of the European communities' financial interests. Article 1(3) sets out the circumstances in which member states are expected to assist. All member states are therefore bound by the same rules in this respect, and they are under the same requirement to assist in relation to the same kinds of crime.

As I explained in previous groups of amendments, we considered that it was simpler to include a definition covering all of the circumstances than to list them all repeatedly in chapter 4. For us to set a different threshold would place the UK in breach of the protocol, which would mean that we would not be considered to have implemented it. Thus we would be going against our international obligations. If we did that, we could not expect other countries to comply with any requests for assistance that we made under the provisions of the protocol. As I have previously stressed, the protocol is an essential tool in the fight against international crime and will bring considerable benefits to our own investigations and prosecutions.

A crime with a maximum sentence of 10 years is undoubtedly serious, but there are other serious offences that would not meet the test, for which we might wish to be able to offer, or seek, that kind of assistance. Customer information orders will be helpful in tracing and locating criminals and terrorist groups. For example, under the Child Abduction Act 1984, child abduction—taking a child out of the UK without consent—attracts a maximum sentence of seven years. Banking information might be of assistance in locating a suspect. Some offences—for example, possession of a dangerous article on an aircraft, including explosives such as bombs, grenades and firearms—are classified as terrorist offences and attract a maximum sentence of five years. Under the Computer Misuse Act 1990, the unauthorised modification of computers and their unauthorised access with intent both attract maximum sentences of five years. That is one example of crime without borders that could be the subject of an international investigation.

The amendment would also rule out seeking or providing assistance in investigations into benefits from crime in cases in which the minimum sentence is less than 10 years. Many other offences in that category might give rise to such an investigation. I hope that that reassures the hon. Gentleman and clarifies the situation. I ask him to withdraw the amendment.

Nick Hawkins (Conservative, Surrey Heath)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 143, in

clause 46, page 27, line 9, leave out paragraph (b).

Alan Hurst (Labour, Braintree)

With this it will be convenient to discuss the following:

Amendment No. 101, in

clause 46, page 27, line 12, at end insert—

'( ) An order under subsection (3) shall be made by statutory instrument and may not be made unless a draft of the statutory instrument containing the order has been laid before and approved by a resolution of each House of Parliament.'.

Amendment No. 102, in

clause 46, page 27, line 12, at end insert—

'( ) No order shall be made under subsection (3)(b) by the Secretary of State until a draft of that order has been laid before and approved by resolution of both Houses of Parliament.

( ) No order shall be made under subsection (3)(b) by the Scottish Ministers until a draft of the order has been laid before and approved by a resolution of the Scottish Parliament.'.

Amendment No. 64, in

clause 50, page 29, line 40, leave out from 'Ministers' to 'a' in line 41 and insert

'may only be made if a draft of the statutory instrument has been laid before and approved by'.

Amendment No. 65, in

clause 51, page 30, line 49, at end insert—

'(2A) An order made under subsection (2) shall be made by statutory instrument and may only be made if a draft of the statutory instrument containing the order has been laid before and approved by a resolution of each House of Parliament'.

David Heath (Liberal Democrat, Somerton and Frome)

Amendment No. 143 would leave out clause 46(3)(b). This part of the Bill deals with an extension of the offences that are relevant to it, and it does that by means of a process that leaves something to be desired because there is a democratic deficit. It suggests that the Council of Ministers can determine that. It will then be pushed through the House of Commons by order under the negative procedure. It is unsatisfactory to add new offences that will have the implication of considerable intrusion into the private affairs of individuals in this country without parliamentary scrutiny. Especially if the decisions under the Council are taken by majority voting in this area—which may well be the case in the foreseeable future—it is possible that the House will find itself bound by a decision to which UK Ministers were not in agreement, that it will have the minimum scrutiny of a revised list of offences that does not appear in the Bill or in the protocol to which it directly applies, and that it will not have the opportunity—in real terms—to debate the matter and to identify whether we are content that such offences should be recognised for the purposes of this part of the Bill.

That is an inadequate procedure. The Minister can help the Committee by taking its members through, stage by stage, how she envisages the process would take place. At present, I am not persuaded that this gives sufficient opportunity for Parliament to determine the rights and wrongs of that which would apply to British citizens.

Nick Hawkins (Conservative, Surrey Heath)

I entirely understand what the amendment of the hon. Member for Somerton and Frome addresses, and I hope that, as he suggests, the Minister will take us through the matter stage by stage.

My party's amendments that are grouped with the hon. Gentleman's amendment are Nos. 101, 102, 64 and 65. Amendment No. 101 is our usual amendment—we often table it—to secure the affirmative resolution procedure. We think that it is important to have parliamentary scrutiny of these matters, and I hope that, on reflection, the Minister will agree that an affirmative resolution is appropriate. Amendment No. 102 requires that the Secretary of State—or a Scottish Minister—gives approval. Amendments Nos. 64 and 65 are consequential amendments that would take the same thing forward into clauses 50 and 51.

It would be helpful for the Secretary of State—or a Scottish Minister in Scotland—to give approval at an early stage, and we regard the affirmative resolution procedure as extremely important. We do not want these things going through Parliament on the nod. I hope that the Minister will respond to the amendment of the hon. Member for Somerton and Frome, and that she will take our amendments seriously, in the spirit in which we move them.

Caroline Flint (Labour, Don Valley)

Amendments Nos. 101 and 102 would mean that any order made by the Secretary of State or Scottish Ministers to designate the further offences for which customer information orders may be sought will be subject to affirmative rather than negative resolution.

Clause 46(3) provides that the order-making power

will be used

''for the purpose of giving effect to any decision of the Council of the European Union under paragraph 6 of that Article.''

That means that if the EU member states decide that the scope of article 1 of the protocol should be broadened to cover more crimes, as provided for in article 1(6), the UK could broaden the assistance that it could provide without passing new primary legislation. The provision in article 1(6) was included in the protocol as a practical measure to avoid the need for an amending convention. A decision to broaden the scope of article 1 would be taken only in the light of experience of operating the provision, and the decision would be subject to parliamentary scrutiny through the usual scrutiny processes.

Customer information orders will be a useful tool, not only in tackling financial crime, but in tracing and locating criminals and terrorist groups that might be involved in committing all sorts of other crimes. We think it right that the Secretary of State should have the power to widen the circumstances in which they may be sought in future.

Amendment No. 65 also deals with secondary legislation, but in relation to the whole of part 1. Its effect would be to require all orders made in relation to part 1, including orders to designate participating countries, to be subject to affirmative resolution. We cannot accept that amendment, or amendment No. 143. Making all orders under part 1 subject to affirmative resolution would be excessively burdensome and would result in inappropriate use of parliamentary time. Negative resolution procedure is generally held to offer an appropriate level of parliamentary scrutiny for this type of legislation. It does not rule out the possibility of a debate, but it saves unnecessary debate on matters that simply do not merit it.

An example of a case in which the order-making power would be used is clause 7(5), which permits the Secretary of State to designate prosecuting authorities to make requests for obtaining evidence abroad. An order designating prosecuting authorities was made by negative resolution under the 1990 Act.

All the order-making powers in the Bill have been subject to the scrutiny of the Select Committee on Delegated Powers and Regulatory Reform. In response to concerns expressed by that Select Committee about the power to designate participating countries, the Government introduced amendments to require the affirmative resolution procedure for designating new countries, but with an exception for countries that are members of the European Union. There are parallel arrangements for regulations made at Westminster and by the Scottish Parliament. Apart from those concerns, which we reacted to, the Select Committee was content with the level of delegation of powers across the Bill.

The reason for the exception is that we will designate the 10 new member states, following their accession to the EU, to participate in the measures in

part 1. All went through an extensive assessment before being accepted for membership and must implement the EU instruments that the Bill implements. As member states, they have effective judicial systems and are signatories to the European convention on human rights, as, of course, are all existing members of the EU. It would not be appropriate or necessary to put up further barriers to the application of the provisions to those countries.

We think that, in the circumstances, there is opportunity for parliamentary scrutiny under present procedures, which do not entirely rule out parliamentary debate. In line with other order-making powers of Parliament, we think that a negative resolution procedure will suffice.

David Heath (Liberal Democrat, Somerton and Frome)

One must always respect the care and consideration that Ministers take not to overburden the House of Commons with scrutiny, but I think that the case is not made. The amendments deal with the substantial issue of what many of us feel is an inadequate process of scrutiny. I do not wish to pursue the matter at this stage, but I have no doubt that we will return to it at a later stage in the Bill's consideration. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

David Heath (Liberal Democrat, Somerton and Frome)

I shall ask the Minister some questions, but I do not expect her to have the answers immediately. They are similar to the questions that I asked about the correlation between jurisdictions in England and Scotland.

On the definition of ''financial institutions'', I am assuming that any financial institution that carries out any business that is in the regulated sector in the United Kingdom is caught by the definition, irrespective of its country of incorporation or where its main business is transacted, and that it is not possible for a company to pray in aid, as a cover for any financial transactions, the domestic law of the country of its incorporation in order to protect its customers' confidentiality.

My second point is to ask what arrangements have been put in place to deal with similar legislation for the various territories for which Britain has international responsibility, but which are not under UK jurisdiction. In particular, I am thinking of the British overseas territories and the Crown territories. If I were an international criminal, I would be tempted to use one of the island territories, rather than a UK mainland financial institution, as my preferred route for the transfer of money.

I would like to think that the UK was taking its international responsibilities for overseas territories seriously, in particular for those situated in the Caribbean, which have significant financial institutions, and for the bailiwicks and others of the Crown territories. I do not expect the Minister to have a chapter-and-verse response to hand. She might be able to provide an instant reply, which would be

splendid news, but if she cannot, I would be grateful if she wrote to me.

Caroline Flint (Labour, Don Valley)

The answer to the hon. Gentleman's first question is yes. On his second question, the protocol does not apply to overseas territories or Gibraltar, the Channel Islands or the Isle of Man. They can all join it, but that is their decision. I have listened to the hon. Gentleman's points about accounts of general activities, and I am sure that my officials are listening too.

David Heath (Liberal Democrat, Somerton and Frome)

I am a little alarmed by that, and I hope that the Minister will have discussions with both Treasury and Foreign and Commonwealth Office colleagues about it. It is time that we took seriously our responsibilities for overseas territories, especially in the case of Gibraltar, which is part of the territory of the European Union, so it should have parallel legislation. If it does not, there should be an exchange of views between the Foreign and Commonwealth Office and the Chief Minister of Gibraltar.

Clause 46 ordered to stand part of the Bill.

Clause 47 - Transfer of uk prisoner to assist investigation abroad

James Paice (Conservative, South East Cambridgeshire)

I beg to move amendment No. 103, in

clause 47, page 27, line 28, leave out 'competent' and insert 'relevant judicial'.

I knew it would be worth coming to the Committee this morning. I shall begin by adding my congratulations to the Minister on her appointment. I commend her on the way in which she has fulfilled her responsibilities in the past two hours or so. I have just seen the clock, and this is the worst possible time to be moving an amendment. I shall endeavour to speak to it briefly so that I do not have to try to remember where I was in the middle of a sentence at 2.30 pm.

Amendment No. 103 relates to chapter 5 of the Bill, which is about the transfer of prisoners abroad. There are more significant issues to raise later, so this is simply an exploratory amendment on the definition of the term ''competent''. We have suggested that that should be deleted and that the Secretary of State, pursuant to an agreement with the judicial authority of a participating country, should issue the warrant.

I recognise from the debate in the other place that in the UK not all the competent authorities will be judicial authorities. Customs and Excise, the Crown Prosecution Service and the Prison Service could be described as competent authorities. I readily accept that perhaps the word ''judicial'' is not appropriate, but I should like the Minister to explain a little more about what the Government might think is a competent authority from abroad. Will it be a body listed in a bilateral arrangement? Will there have to be any previous arrangement about which are the competent authorities in participating countries, and certainly in the country that is requesting the transfer of a prisoner, or will a decision on whether a body is competent be made by our Government on each individual occasion?

I am concerned that some measures in the Bill are tending to assume that the body abroad, which will be making various requests—in the context of this clause, it will be the request for a transfer of a prisoner—will be the right authority. We must bear in mind the types

of countries with which we may be having such a relationship.

It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee pursuant to the Standing Order.

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

Standing Committee A

Clause 47 - Transfer of UK prisoner to assist investigation abroad

Caroline Flint (Labour, Don Valley)

I welcome you to the proceedings this afternoon, Mr. Benton. We shared a short time serving together on the Select Committee on Education and Employment when I was first elected to the House and I am privileged to serve under your chairmanship this afternoon.

Clause 47 deals with outgoing requests from the United Kingdom for prisoners to be transferred from the UK to another country. In transfer cases, the competent authority making the transfer might not be a judicial authority in one of the countries involved. It need not even be a judicial authority. The mutual legal assistance convention requires that type of request to be transmitted between central authorities, not directly between judicial authorities.

When a prisoner is to be transferred from the UK under the clause, the request will be made by the prosecuting authority. The authority making the request will depend on the circumstances of the case. In a police investigation, the Crown Prosecution Service will issue the request on their behalf; in a Customs investigation, Customs will issue its own request as it is designated as a prosecuting authority. When a prisoner is transferred to the United Kingdom at the request of another state under clause 48, the request and practical arrangements will be handled by the UK central authority and the Prison Service, which will liaise with the prison in which the prisoner is held. There is no involvement of a judicial authority at the UK end.

While the authority at the requesting end of the process will be a competent judicial authority, a different non-judicial authority could—and, in the case of the UK, does—deal with the request at the executing end. It will therefore not be appropriate to refer only to judicial authorities for that reason.

We have not sought to define ''competent authority'' because we do not wish to exclude appropriate authorities that have the authority to deal with such transfers. We are satisfied that that will not lead to a situation in which we execute requests from inappropriate authorities. All such requests must

be routed by the central authority, the Secretary of State, in the requesting and the requested state, providing a check at both ends of the process that the request comes from a valid and appropriate authority. I hope that I have reassured the hon. Member for South-East Cambridgeshire (Mr. Paice).

James Paice (Conservative, South East Cambridgeshire)

Will the Minister confirm that the request will come from another country via the Government of that country before it reaches our Secretary of State? Clause 47 states that the Secretary of State

''pursuant to an agreement with the competent authority of a participating country'',

as though it is the authority that will make the request. The hon. Lady seems to be saying that that is not so, but that it will come via the Government of that country, so that we will know that it is a genuine request.

Caroline Flint (Labour, Don Valley)

My understanding is that the central authority of the country concerned would be responsible for authorising the order. I shall seek further information on that point from my officials, who are writing quickly as I speak. I shall clarify the situation.

David Heath (Liberal Democrat, Somerton and Frome)

While the Minister is considering her response to the hon. Gentleman, perhaps she can answer this question. What would the situation be in the case of a federal authority when the prison system, or the prosecuting authority is under the control not of central Government, but of the Länder or whatever?

Caroline Flint (Labour, Don Valley)

My officials suggest that if a request were issued by a judicial authority, it would come via the Government. The arrangement will be with a competent authority, although not necessarily the Government, and the initial request will be sent via the central authority. I hope that that clarifies matters. If it does not, I shall write to the hon. Gentleman to clarify for all Committee members what that means.

We are keen to ensure that things are dealt with properly, whether by the judicial authority or a competent authority, for example, the Prison Service. We would not want anything to prejudice either a case or the outcomes we want from the Bill.

James Paice (Conservative, South East Cambridgeshire)

I, too, welcome you to the Chair, Mr. Benton.

I am grateful to the Minister and I congratulate her on her quick learning and nifty footwork in the ministerial role. I think that she has answered the question, but I am still a little bit confused. She was, of course, unable to answer the intervention from the hon. Member for Somerton and Frome (Mr. Heath).

I share the Minister's objective. We do not want things to go wrong. Similarly, as I explained on introducing the amendment briefly before we broke for lunch, I am concerned—just on the off-chance—about a request from an authority that was not genuine being properly checked. That was why I sought an explanation of the definition of the word ''competent''. Perhaps the Minister could consider that matter again and write to the Committee with a clear explanation of how it would operate and who

might be the authorities. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 144, in

clause 47, page 27, line 37, at end insert—

'( ) subject to any other restriction applied by a court in the United Kingdom that might prevent him from travelling to the relevant participating country.'.

I welcome you to the Chair, Mr. Benton.

I fear that this might fall into the class of amendments that I have tabled, to which officials respond, ''I do not know what he is talking about.'' That happened to the previous amendment and elicited quite a useful debate. Therefore, let me explain. I am simply probing the Minister on a serious point, rather than seeking an amendment to the Bill in the specific form that I have used.

The purpose of the clause is to allow people who are held by the British judicial system whose assistance is required in an overseas investigation or proceedings to go to that country in order to help. The prisoner, who may be on remand, has to agree to that request, after which the transfer would take place.

There could be instances in which somebody who was required to assist with an investigation abroad would be held in the UK, not by virtue of being in detention in a prison, but by other legal instruments now available to the sentencing authorities. For example, certain categories of offenders may have had their passports confiscated, or they could be in custody plus, which is being debated as part of the Criminal Justice Bill. There might be restrictions on their movements, or reporting requirements, that would prevent them from travelling abroad. They are not free agents. They cannot themselves answer a request to assist in an investigation abroad, but neither are they in the classes defined in clause 47(2)—a person serving a sentence, awaiting trial, or incarcerated for being in default of payment of a fine. I may be wrong, but I understand that there is currently no provision for British judicial authorities to accommodate such circumstances. It would be sensible if there were. If there were a request from overseas for someone who was prevented, by virtue of a sentence, from travelling abroad to assist with an investigation, there ought to be some way of temporarily setting aside that sentence, in the same way as is suggested for the transfer of prisoners, in order for that mutual assistance to be made.

I do not know whether alternatives are already in statute—if they are, I am not aware of them—and this has not been debated in the context of the Criminal Justice Bill where, as I have said, a new range of sentencing measures has been discussed. This is the obvious place for a provision to be made to allow a sentence to be temporarily suspended for the purpose of giving assistance abroad.

I hope that I have made a constructive suggestion to the Minister, because we should at least think about this.

Sylvia Hermon (UUP, North Down)

The hon. Gentleman raises a valid point. I rise to ask him to address one category of prisoner—those who were released under licence and strict conditions under the Belfast agreement. Could the Republic of Ireland call things into question and require one of those prisoners to go to the Republic of Ireland?

David Heath (Liberal Democrat, Somerton and Frome)

As always, I am grateful to the hon. Lady for bringing her experience in Northern Ireland to bear. I do not know the answer to that, and I wonder whether the Minister will have one to hand because it is a more complex issue than it might at first appear to be.

I hope that this is a helpful amendment in terms of eliciting a debate. It might be necessary to return at a later stage with proposals to fill in the lacuna in the present arrangements.

Caroline Flint (Labour, Don Valley)

It will be useful to try to clarify this situation. In preparing for this afternoon's exchange, I and my colleagues were trying to think of examples that would be relevant to the points that the hon. Member for Somerton and Frome raises. One such example that we came up with was if someone has been found guilty of football hooliganism, and is therefore barred from leaving the country. However, during our discussions on that, we felt that if someone were in custody—for example, they could be a prisoner and already have that restriction placed upon them—the fact that they would be in custody would mean that there would not be free access to travel and travel would be under supervision and in a custody situation.

Clause 47 provides for us to transfer prisoners abroad to assist with UK investigations into an offence that has been committed in the UK. It is unlikely to be used frequently, but it could be used where, for example, a prisoner is required to identify a site or participate in an identification parade overseas. Existing provisions under the Criminal Justice (International Co-operation) Act 1990 provide for prisoners to be transferred from the UK to another state at that state's request and from other states to the UK at our request. This new provision—along with clause 48—implements new obligations under the mutual legal assistance convention that build on and extend those existing arrangements for the transfer of prisoners.

This amendment is unnecessary. For the transfer to take place, the competent authorities of both participating countries need to agree the terms of the transfer so that custodial provision can be made in the requesting state. To safeguard the rights of the prisoner, subsection (4) specifies that a prisoner, or someone acting on their behalf, must provide written consent to agree to be transferred in this way.

Amendment No. 144 would impose a limitation that the subsection applies to a prisoner

''subject to any other restriction applied by a court in the United Kingdom that might prevent him from travelling''.

That is unnecessary. For any prisoner to be transferred, there must be an agreement between the competent authorities here and in the country to which they are to be transferred. Furthermore, these outgoing transfers will be made at the request of the

UK authorities. If a prisoner were not allowed to travel, it is clear that they could not be transferred—that would be a breach of the order. It is difficult to envisage the circumstances in which someone in custody will be subject to specific restrictions on travel, as they will clearly be unable to travel as they are in custody anyway. I hope that that has clarified our position.

The provision covers a specific requirement under the mutual legal assistance convention and the Council of Europe's second additional protocol to transfer prisoners. There may be other categories of persons who are not allowed to travel, but we cannot request their transfer overseas on the basis of the agreements that we are implementing.

Sylvia Hermon (UUP, North Down)

I take this opportunity—my first—to congratulate the Minister on her appointment. I wish her well.

I should like the Minister to clarify a couple of points, one of which relates to my intervention on the hon. Member for Somerton and Frome, who speaks for the Liberal Democrats. Can the Minister confirm whether the provisions of subsection (2) apply to those prisoners who were released under the Good Friday agreement? Secondly, can she clarify whether there is a limit on the time that a prisoner who leaves the United Kingdom to go to another requesting country can be out of this country? I am conscious of our human rights obligations to maintain rights to family life, even for prisoners.

Caroline Flint (Labour, Don Valley)

I thank the hon. Lady for that intervention. I shall follow up the issue about prisoners who have been released on licence in writing. On time limits, the provisions of the Bill, and similar provisions for other member states, are in line with the European convention on human rights. The Bill has also been scrutinised by the Joint Committee on Human Rights.

The answer to the question on Northern Ireland is, no, the provisions do not apply. The people to whom the hon. Lady referred are not serving a sentence in prison, nor do they fall under any other category of subsection (2), so the subsection would not apply.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful for the Minister's reply so far as it went. I do not want to be unkind to her, but I think she misread the point of my question, and that is probably my fault for not having explained it fully.

My amendment clearly does not qualify those categories already contained in clause 47(2), but adds to persons

''(a) serving a sentence in a prison,

(b) in custody awaiting trial or sentence, or

(c) committed to prison for default in paying a fine''

the further category of those persons who are sentenced to an order that prevents them from travelling abroad. The Minister is right to say that that category does not fall within the letter of the mutual legal aid agreement. However, it raises the point that a request from a participating country for assistance in an investigation from someone who is subject to a travel restriction could not be granted. That person could not assist even if they wanted to,

because they would be subject to a restriction applied by a court in the UK. The only way that the person could assist would be if the court in the UK lifted the restriction. The clause is not as helpful as it might be in terms of mutual assistance.

I do not want to prolong the debate, but I should like the Minister and her officials to examine the record of previous debates in order to understand what I am struggling to say. There is a gap, which perhaps no one has any intention of filling—it is just bad luck if the crucial witness in an investigation happens to be football hooligan who has had his passport confiscated and cannot be transferred abroad. If that is the case, so be it. However, I thought that the intention was to provide maximum legal assistance. Increasingly, we are using novel forms of sentencing that do not include incarceration, or include it only as part of the sentence, and increasingly people will be subject to other orders of various kinds that will prevent them providing assistance.

I shall happily sit down if the Minister wants to make another speech, or I can move towards withdrawing my amendment. I should be interested to hear any further information that she may have.

Caroline Flint (Labour, Don Valley)

I am afraid that I beg to differ on the necessity of the amendment, but before we complete consideration of this part of the Bill, I should say, in answer to the question on time scales and family life, that there is no time scale. Any time that a participator in such activities served in a prison would be deducted from their sentence, and would count as custody. It would be considered part of their custody arrangement, so there would be no add-on time to their sentence. Also, it should be remembered that the prisoner has to agree to the transfer.

David Heath (Liberal Democrat, Somerton and Frome)

That does not take my argument any further forward. I have ground to a halt. I therefore beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 145, in

clause 47, page 28, line 5, at end insert—

'( ) Before making any written statement under subsection (4), the prisoner must be offered access to legal advice on the legal consequences of a transfer'.

This amendment is at least easier to understand. Its meaning is self-evident; at least, I hope so. It simply requires the prisoner to be offered access to legal advice on the consequences of signing the written statement consenting to transfer. I think that in debate in the other place—I do not have the reference to hand—there was a suggestion that such advice would usually be available to prisoners. However, it should invariably be available. The prisoner might not avail himself of that opportunity, but clearly there are potential legal effects of travelling abroad to assist with an investigation. The prisoner does so as an expression of his own free will; there is no compulsion whatever for the prisoner to be transferred for that purpose, as we clearly understand from the Bill. Therefore, before they do so, they ought to have the benefit of legal advice as to whether that is a sensible thing for them to do or not, because the consequences

could be serious for them. That is exactly what my amendment says.

I hope that the Minister will, if not accept the amendment, at least give a clear undertaking that that legal advice will always be forthcoming before such a consent is signed.

Caroline Flint (Labour, Don Valley)

The amendment would ensure that the prisoner whose transfer is sought has access to legal advice. As the Government have made clear in relation to earlier clauses, we do not consider that any provision in part 1 merits automatic provision of legal advice, or that it should be included in the Bill. There is no such provision in relation to proceedings before our domestic courts.

I refer the hon. Gentleman to the Hansard report of an earlier sitting. In relation to clause 31, my hon. Friend the Member for Coventry, North-East (Mr. Ainsworth) said:

''Under domestic law, there is no obligation for anyone appearing as a witness to seek legal advice, nor is there any automatic right to it. It would not be right or consistent to require that a person has received legal advice in such circumstances, when the UK does not require that in respect of domestic criminal proceedings, either for witnesses, whether willing or unwilling, or even defendants, who are not covered by the provision.''—[Official Report, Standing Committee A, 12 June 2003; c. 141.]

Prisoners in those circumstances are of course free to seek legal advice in relation to any transfers, both under the 1990 Act and under the Bill. However, we do not believe that that should be set out in statute, and therefore we see no merit in having special arrangements for the new transfers.

David Heath (Liberal Democrat, Somerton and Frome)

I am rather disappointed in that response, because clearly a prisoner is in a different situation from other individuals in the country; he is in a prison, where he does not have free access to the same facilities as someone who is not in a prison. My amendment does not say that prisoners must be given legal advice; it says that they must have access to it. In other words, a prisoner should not be debarred from seeking legal advice before signing the important consent. That is a fundamental issue for a prisoner who is not entirely a free agent—at least, I hope that he is not, because if he is, prison would not be serving its useful function. A prisoner cannot make an informed consent if he does not at least have access to legal advice, regardless of whether he avails himself of it.

I am disappointed that the Minister has prayed in aid, clearly on advice, the different circumstances of the earlier clause that apply to a person offering to give evidence over a telephone. She was not referring to a person being taken to a different jurisdiction, which is covered by the clause, nor his movement and actions being restricted because he was a prisoner. It was not an analogous case.

I had expected the Minister to say that, of course, under the British Prison Service, there would be no question of a prisoner not having access to legal advice in circumstances in which he was being asked to consent to being taken to a foreign jurisdiction to assist with an investigation. I also expected her to say

that it was unnecessary for such matters to be written into the Bill, because such action is the invariable practice of the British Prison Service. I would have then asked her to put such a provision in the Bill because it would be an additional safeguard if a change came about in British prison practice. However, the fact that she did not say that worries me greatly.

James Paice (Conservative, South East Cambridgeshire)

I support the hon. Gentleman and endorse the fact that we are talking about matters that are in a completely different league of seriousness compared with giving evidence by telephone. I draw his attention to the record of last Thursday afternoon's sitting when the former Minister made light of a similar amendment in respect of the telephone on the basis that we were talking only about giving evidence voluntarily over the telephone. We are now discussing a different problem and the Minister should note the imbalance between what her colleague said last Thursday and what she is now saying today.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful for the hon. Gentleman's support. The issue is important. We have not pursued many amendments to their logical conclusion in Committee, but I hope that the Minister will make a further contribution to our deliberations and explain the situation.

There is all the difference in the world between a person offering to pick up a telephone, albeit under the conditions of court proceedings, to give evidence from the security of his own country, and a prisoner who is taken from his cell to travel across the sea to another country and provide evidence in that jurisdiction. That person purports to have given consent to that procedure, but has not been given the opportunity of legal advice. I do not believe that the British judicial and penal system would allow that to happen. All I am really asking is for the hon. Lady to say that she does not believe that a prisoner would not be granted access to legal advice before signing the consent. She may wish to make another contribution to the Committee, so I shall sit down and let her do so.

Caroline Flint (Labour, Don Valley)

I thank the hon. Gentleman for giving way. Prisoners can seek legal advice. It is just not automatically offered to all prisoners who are subject to transfer requests. There is nothing to stop them obtaining legal advice. I am referring to United Kingdom investigations in which for some reason a UK prisoner is needed as a witness overseas. As with any other UK investigation or prosecution, legal advice may be sought, but it is not automatically available. I stress that we are discussing UK investigations and UK requests.

David Jamieson (Labour, Plymouth, Devonport)

It is as simple as that.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. Gentleman says from a sedentary position that it is as simple as that. It may look like that from the Department for Transport but, without wishing to be unkind, I think that it is rather more complex than he suggests.

My amendment does not state that the prisoner must be offered legal advice: it states that

''the prisoner must be offered access to legal advice'',

which is different. The important point is that a prisoner who wishes to have legal advice before signing the consent must be able to have access to it. That is all that I am seeking to include in the Bill.

Does the Minister wish to intervene again?

Caroline Flint (Labour, Don Valley)

No.

David Heath (Liberal Democrat, Somerton and Frome)

The Minister does not. That is a great misfortune. It means that I will have to seek press the amendment to a Division at some stage, and now is as good a time as any.

Question put, That the amendment be made:—

The Committee divided: Ayes 4, Noes 12.

James Paice (Conservative, South East Cambridgeshire)

I beg to move amendment No. 58, in

clause 47, page 28, line 9, leave out 'cannot' and insert 'may'.

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss the following amendments: No. 59, in

clause 47, page 28, line 9, leave out 'cannot' and insert 'may in exceptional circumstances'.

No. 60, in

clause 47, page 28, line 9, after 'withdrawn', insert 'on medical grounds'.

No. 61, in

clause 48, page 29, line 3, leave out 'cannot' and insert 'may'.

No. 62, in

clause 48, page 29, line 3, leave out 'cannot' and insert 'may in exceptional circumstances'.

No. 63, in

clause 48, page 29, line 3, after 'withdrawn' insert 'on medical grounds'.

James Paice (Conservative, South East Cambridgeshire)

I trust that the Minister will not be too flushed with her first success in a Division. She should not get too carried away and always turn against the logic of the arguments from Opposition Members.

Amendments Nos. 58, 59 and 60 address clause 47. Amendments Nos. 61, 62 and 63 are virtually identical and apply to clause 48. I will speak about amendments Nos. 58, 59 and 60 and the Committee can take it as read that the same arguments apply to the following three amendments to the following clause.

Amendment No. 58 can stand alone, but it can also go with amendment No. 60. However, amendment No. 60 on its own is meaningless; it requires amendment No. 58. Amendment No. 58 would make a fundamental change to the issue of consent in clause 47 with regard to being transferred abroad. Subsection (6) states:

''Such consent cannot be withdrawn after the issue of the warrant.''

There are no ifs or buts there, and I want to press the Minister as to whether the Government believe that there are no circumstances in which it might be withdrawn.

Amendment No. 58 would simply replace ''cannot'' with ''may'' so that consent may be withdrawn after the warrant has been issued. That would make it an open subsection but, nevertheless, it would meet the requests of the Law Society, which has raised this issue with us. It is opposed to a provision that makes giving consent an irrevocable act. Of course, it is understandable that we do not want prisoners to say regularly yes, no, yes, no; that would be making a mockery of the legislation. However, it is a long way from that situation to the clear irrevocability of subsection (6).

I also ask the Minister for an explanation of how the subsection sits with the Human Rights Act 1998. My reading of the provision is that such a statement of irrevocability might well be construed as going against the human rights of the person concerned, if they are not allowed to change their mind in any circumstances. I will be interested to hear how the Minister responds to that.

Amendment No. 60 would insert, after ''withdrawn'', the phrase ''on medical grounds''. Taken with amendment No. 58—the two would have to go together—subsection (6) would be changed to read, ''Such consent may be withdrawn on medical grounds after the issue of the warrant.'' The open-ended nature of ''may be withdrawn'' would be narrowed considerably if we inserted an amendment to say that consent can be withdrawn on medical grounds only. Civil justice almost requires that that should be included. Most people would accept that it would be reasonable for the issue to be revisited if someone were taken ill, or if an existing condition deteriorated after the prisoner had given consent.

Sylvia Hermon (UUP, North Down)

I support the hon. Gentleman's amendment, but it is drawn too narrowly. I am thinking in particular of a prisoner who is to be transferred out of the United Kingdom into a different jurisdiction. Family members of those who give evidence in a serious criminal case can easily be intimidated. I speak from experience in Northern Ireland. People have been murdered because a family member was to be a witness in a case.

James Paice (Conservative, South East Cambridgeshire)

I am grateful to the hon. Lady. If she bears with me, perhaps I can convince her of the wisdom of amendment No. 59, which I shall come to in a minute; that provides another way. We have tabled a menu of options, designed to test what has been described as the iron-clad wording of the subsection, and whether the Government really mean it to be as total and absolute as it is at present.

When the matter was debated briefly in the other place, the Government stated that an ill or mentally unstable patient would not be required to travel, as they would not be of much use anyway. However, that is giving someone else the duty of making a judgment on whether that is the case. I also think that it is pretty

offensive to suggest that someone who happens to be ill would not be of much use. It does not necessarily mean that their mental faculties would be impaired. Presumably they are not; that is why they are being transferred. I frankly do not accept that as a valid argument. The debate is about the individual's consent, not about someone else deciding whether a person should go. It is about whether the individual's consent, once given, should be withdrawn.

Amendment No. 59 is the other option on the menu. Perhaps the hon. Member for North Down (Lady Hermon) will have a preference for it. The amendment suggests that instead of talking about ''may'' or ''medical grounds'', we should leave out ''cannot'' and insert ''may in exceptional circumstances''. Obviously, it is not as wide open as ''may'', which we originally suggested in amendment No. 58, but it is certainly nothing like as narrow and restricting as the exception on medical grounds. I venture to suggest that the sort of circumstances that the hon. Lady has referred to, such as intimidation of family members, would qualify as exceptional.

The basic point that I am trying to explore with the Government through the amendments is why the Government believe that the giving of consent should be absolute. Nobody wants the clause to become inoperable though the individual withdrawing consent, giving it and withdrawing it again. There should, however, be some opportunity for that to be revisited in exceptional circumstances. I am relatively relaxed about whether the phrase, ''may in exceptional circumstances'' is included, or whether exceptions would be limited to medical grounds, although I note the hon. Lady's comments. I am equally concerned that to leave it as it is would be too absolute—it needs to be changed.

As I said earlier, amendments Nos. 61 to 63 are repeat amendments to be applied to clause 48 in slightly different circumstances.

Caroline Flint (Labour, Don Valley)

As has been outlined in the debate so far, the amendments seek to make the same changes to the clauses on outgoing and incoming requests for the transfer of prisoners—clauses 47 and 48 respectively. Those clauses deal with circumstances in which the transfer is made from one country at its own request when its investigations require a prisoner's presence in another country. It is envisaged that such circumstances would be very rare.

The clauses as they are currently drafted require the prisoner to provide written consent to any transfer before it takes place. That builds in, from the outset, some serious consideration by the person who is questioned about voluntarily agreeing to take part in a transfer. If such consent were granted, the arrangements for the transfer would be put in place by the authorities concerned. The Secretary of State would, after those arrangements were in place, issue a warrant authorising the transfer of the prisoner. After the issuing of the warrant, the prisoner would be unable to withdraw his consent. There would be a long process up to the warrant being issued, during which

the prisoner may still withdraw his consent to take part.

I understand what the hon. Member for South-East Cambridgeshire (Mr. Paice) said. He has put it on the record that he does not want to encourage a cat-and-mouse game being played with the Bill and the ability to transfer prisoners. However, we are concerned that the amendments might, in certain circumstances, allow a prisoner to withdraw his consent after the issue of the warrant. The Government appreciate that the amendments are intended to protect the rights of the prisoner. However, the Joint Committee on Human Rights did not comment on that issue. Furthermore, the Secretary of State is also bound by the Data Protection Act 1998. The amendments would create some potentially serious problems.

There are many steps in the process up to the final point at which the warrant is issued. As a general principle, we do not think a prisoner should be able to withdraw his consent after he has granted it, for the practical reason that if he withdrew his consent during the transfer, that would invalidate the warrant, which would mean that the prisoner was not held in legal custody.

All Committee members would agree that a prisoner who gave consent should not be transferred if, between the time of giving consent and the date of the transfer, he became ill and was unfit to travel. There might be other exceptional circumstances in which, even if the prisoner had consented, it might not, in the end, be appropriate for him to travel. For example, there may be a national emergency in the destination country. We do not, however, agree that it is necessary to provide for the prisoner to withdraw his consent in such circumstances. If that happened, the warrant simply would not be issued. The Secretary of State provides a final safeguard in such procedures.

The UK authorities would not transfer a prisoner if he were not medically fit to travel. He would not be transferred if a doctor did not to agree—even if he insisted that he were well enough to travel. In such circumstances there would be certain issues around the custodial arrangements and protecting the prisoner. Not only would it not be in the interests of the prisoner to be transferred if he were unfit to travel, but it would not be in the interests of the investigators.

There is no need to provide for the possibility of the withdrawal of consent. In the event that the prisoner became unfit to travel, the transfer would be suspended or cancelled. The warrant is generally issued at the very end of the process—just before the transfer would take place. It would not be used if the prisoner were unable to travel. Under such circumstances, to go through a long process, during which authority on different levels was sought, only for a prisoner to say at the final hour that he will not take part in the transfer, would perhaps undermine the Bill and the reasons for the transfer.

The clauses reflect the terms used in sections 5 and 6 of the 1990 Act, and the provision relating to consent reflects the position under that Act. So far as I am aware, there have been no practical problems in relation to that issue.

James Paice (Conservative, South East Cambridgeshire)

I am grateful to the Minister for her reply. She stated that the Government do not feel that as a general principle people should be able to withdraw consent. I agree. As a general principle, they should not be able to withdraw consent, but there are exceptional circumstances.

Although I acknowledge the Minister's point that the warrant is produced only at the last minute—I am not sure how last-minute it is, but I accept that it would be towards the end rather than at the beginning of the process—there are still occasions when something occurs between the issuing of the warrant and its execution. Family intimidation, to which the hon. Member for North Down referred, is a clear example. The prisoner might get a message at the very last minute to say that if he attends something will happen to a member of his family. I am not suggesting that I want to allow people to change their minds by making up stories, but the Government need to reflect on whether they want to be as absolute as they are being at present. If an eventuality such as the one to which the hon. Lady referred occurred and something did happen to a family member, we know where the mud would stick: it would be on the Government who authorised the transfer.

Caroline Flint (Labour, Don Valley)

I hope that I can help the hon. Gentleman. In considering the different circumstances under which a final decision not to transfer might be made by the Secretary of State, there could be a number of issues. One of the problems is coming up with all those examples of exceptional circumstances.

The warrant authorises the transfer of the prisoner only; it does not require it. That is why we do not want the validity of the warrant to be affected by withdrawal of consent. We shall not transfer if the Secretary of State considers it unwise, but we do not want to withdraw the warrant and go back to the beginning of the process. If certain circumstances arose—I have mentioned a few, such as a national emergency in the country of destination or a person being unwell and unfit to travel; the hon. Member for North Down suggested another circumstance—there is an opportunity for the Secretary of State to act. We want to ensure that at the end of the process there is a safeguard, so that we do not undermine all the work that has been done preceding the warrant's authorisation.

James Paice (Conservative, South East Cambridgeshire)

I am grateful to the Minister for trying to clarify the situation. There remains the fundamental point about the decision being that of the Secretary of State or somebody acting on his behalf, or that of the prisoner who wants to withdraw their consent. I envisage a situation where threats have been issued against the prisoner's family, but the Secretary of State refuses to take them seriously. That is not, by any means, unimaginable.

Sylvia Hermon (UUP, North Down)

I can give the hon. Gentleman a concrete example. I am referring to a young man, the late Alan McCullough. He was only 21 . He was encouraged to come back to Northern Ireland by paramilitaries who assured him that he would be safe. He was taken prisoner, tortured and executed. At his

funeral yesterday, the same group threatened his mother, sisters and partner—all women—with execution if they gave evidence in a court under any jurisdiction.

James Paice (Conservative, South East Cambridgeshire)

That is a telling intervention. I am grateful to the hon. Lady, as what she says gives considerable substance to the concerns that I have expressed. It is clear that the Minister will not accede to my amendments or even to the principle, so there is little point in pushing it at this stage. Clearly, she has not yet got to the point that her predecessor reached, who used to stand up and say that he had been given a load of garbage to read out. He said words to that effect last week, which is probably why he was promoted. It is a practice that we should encourage.

Nick Hawkins (Conservative, Surrey Heath)

Given that the previous Minister said that, it strikes me as extremely appropriate that he went back to the Whips Office.

James Paice (Conservative, South East Cambridgeshire)

Yes. Clearly, I cannot expect the Minister suddenly to change tact. It would be unrealistic of me to do so.

Caroline Flint (Labour, Don Valley)

I remind the hon. Gentleman that what we are facing under the clause is exactly what we faced when discussing the 1990 Act that the Conservative party passed. Such transfers are in respect not of participating in proceedings, but of assisting UK investigations.

James Paice (Conservative, South East Cambridgeshire)

I am grateful to the Minister. I was fully aware of what she meant. We have mentioned the 1990 Act when discussing almost every group of amendments since we started proceedings a week ago. It seems that, when the Government do not want to change the Bill, they say, ''Well, this was in the 1990 Act'', and then they change that Act in other areas because they believe that it needs changing. The Minister's predecessor paraded that odd argument last week. I hope that it will be the last time that we hear it while she is responsible for the Bill.

Caroline Flint (Labour, Don Valley)

Don't hold your breath.

James Paice (Conservative, South East Cambridgeshire)

Well, perhaps the message will get through to those who write Ministers' briefs that such an argument is pointless. We all accept that, after 13 years, legislation needs to be re-examined. If the 1990 Act were perfect, most of the Bill would not be before us. It has had to be drafted because of the need to change provisions to meet the new conventions that we have signed up to during the intervening period.

I shall not pursue the issue now. With utmost respect for the arguments advanced by the Minister, I hope that she will understand the worry that is felt about such matters. The hon. Member for North Down has described particular circumstances that add immense substance to our argument. We may wish to return to it later in our proceedings, but I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 47 ordered to stand part of the Bill.

Clauses 48 to 51 ordered to stand part of the Bill.

New clause 4 - Persons under 18 years of age

James Paice (Conservative, South East Cambridgeshire)

I beg to move, That the clause be read a Second time.

The new clause has been touched on. I shall come clean at the beginning of the debate. We have been upbraided in Committee several times for rehashing arguments that have been advanced in another place. However, such a debate needs to be held in Committee. The other place literally spent only a few minutes discussing the impact of the Bill on young people. The Minister may suggest that it will not apply in many cases but, when considering proposed legislation, we must reflect on what might happen, not what we think will happen.

Given overseas processes, the hearing of witnesses on television and by telephone and the transfer of prisoners, which we have just debated, I argue strongly that the Bill could affect people under 18 years of age. As responsible hon. Members, we must all recognise that people under the age of 18—and those who may be significantly so—have specific needs that must be addressed. They cannot necessarily be treated in the same way as an adult. As an aside, I emphasise the point on legal advice that the hon. Member for Somerton and Frome made earlier, and on which he rightly forced a Division. That is even more important for young people.

There are also issues about the role of parents or guardians. Should they be present in all the circumstances that we have discussed in the many clauses that make up part 1? Should they have any role in the decision-making process, including, for example, the one that we have just debated on giving consent to being transferred abroad?

There is an issue about whether delivering by post to somebody who is not yet an adult is right. There is an alternative point, which is the reverse of what I have just said. If an individual is being charged with something that took place overseas, what happens if they would be tried in a youth court in this country but the overseas authority does not have facilities for youth courts? Would we necessarily be happy with them being tried in an adult court? There are implications with regard to human rights legislation, which must also be taken into account. Clause 30(5) requires an oath to be given. If a person gives an oath, they are opening themselves up to the accusation of perjury if they break it.

I give these examples because all of them illustrate why special measures must be put in place for young people. I am not suggesting that young people should be exempt from the provisions of part 1 because most young people should accept the responsibilities that one naturally gains as one grows up. However, provisions should be made for special arrangements. The purpose of new clause 4 is open and straightforward. It simply states that the Secretary of

State may make orders for the part of the Bill to apply with some modification. That modification could be simple. It might state that, where the individual concerned is under 18, their parent or guardian must be present at all times.

However, I am not trying to write the provisions. What I am saying is that the Bill should include recognition of the special arrangements that are necessary for young people. In light of that, I hope that the Minister will understand the import of the new clause. She might not like the words of the new clause, and I am not wedded to them, but I want her to recognise that it is a serious issue. The Committee has considered a substantial range of legal measures, many of which break new ground and could affect young people, and we have to recognise that special arrangements need to be made for them.

I hope that the Minister will respond positively to my new clause.

Caroline Flint (Labour, Don Valley)

The hon. Gentleman raises a valid point about how we should recognise the needs of child witnesses in our court procedures. This Government do recognise that. The Youth Justice and Criminal Evidence Act 1999 defines child witnesses as people under 17, rather than under 18—although, for automatic reporting restrictions, it sets the upper age limit at 18. That legislation recognised that due regard should be given to the needs of children appearing in legal proceedings under a number of different circumstances. That is why the new clause is unnecessary.

Witnesses under 17 are treated differently from older witnesses in so far as they are automatically deemed under section 16 of the 1999 Act to have the status of vulnerable witnesses. As vulnerable witnesses, they are eligible, at the court's discretion, to receive any of a range of special measures—for example, screens, removal of wigs and gowns, giving evidence in private, via video recording or live link—that are designed to help such witnesses to give their best evidence. Whether any such measures are applied is up to the court in the particular case, but it must have regard to whether any of the measures, alone or combined, would be likely to improve the quality of the witness's evidence and to protect the needs of the child as defined.

There are additional safeguards in cases involving sexual offences, violence—including threats—and cruelty, in which under–17s have the status of child witnesses in need of special protection. Giving evidence by live link and/or video recording is virtually mandatory in such cases. The 1999 Act applies to all criminal proceedings in England and Wales. In Scotland, the Criminal Procedure (Scotland) Act 1995 makes provision for similar safeguards in cases involving under–16s, including the use of screens and closed circuit television.

If an overseas authority requested evidence on oath from a child witness here, the court would be required to take account of the legislation. Similarly, an authority requesting assistance from overseas from a child witness for use in domestic proceedings would

have to take into account the provisions of the legislation. There is no need for provision in the Bill to make special arrangements for the treatment of child witnesses, as that is governed by existing primary legislation.

In relation to the transfer of prisoners under chapter 5, there is no absolute bar on the transfer of prisoners under the age of 18. Under the terms of sections 5 and 6 of the 1990 Act, any person serving a sentence in a prison or other institution to which the Prison Act 1952 or the Prisons (Scotland) Act 1989 applies may be transferred. That includes those under 18. In such cases, a parent or guardian may give or refuse consent on behalf of a prisoner if, on account of their age, they cannot make the decision. That is the same as the situation with all prisoners. Consent must be given for transfer.

To sum up, the new clause is unnecessary. We understand the reasons why it was tabled, and it was important to have the debate, but child witnesses are already adequately protected under primary legislation. It is hoped that cases involving child witnesses will be extremely unusual, but protection does exist for such a situation.

James Paice (Conservative, South East Cambridgeshire)

I am grateful to the Minister and congratulate her on a far more comprehensive response to the issue than Lord Bassam gave when it was debated in the other place. His response was scanty, to say the least. I also note that the hon. Lady did not fall back on the excuse that Lord Bassam gave at the time, which was to say that the matter was addressed in the 1990 Act, so it should not be changed. Perhaps my earlier ammunition has already borne fruit, but we will wait and see before we take that as read.

The Minister advances a cogent argument that the point is already covered in other legislation—I shall forget the 1990 Act for a moment—and I am grateful for her recognition that there is an issue that has to be addressed. The Government believe that it is addressed. I will not dispute that now. I will have to study what the hon. Lady said, so that I can be reassured that the point is covered, but the Government seem to understand now, even if they did not when the issue was debated in the other place, the importance of what we suggest. I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

New clause 5 - Annual report on effects of requests for banking information

Nick Hawkins (Conservative, Surrey Heath)

I beg to move, That the clause be read a Second time.

I, too, welcome you to the Chair, Mr. Benton. We are now coming to a couple of new clauses that relate to the banking aspect of the Bill that we debated this morning, when your colleague, Mr. Hurst, was in the Chair. The Minister and the rest of the Committee may have noticed that the important issue of an annual report was debated not once but twice in another place—on 27 January and 25 February. Conservative Members feel strongly about the issue, as does the British Bankers Association. It has pressed us to continue to pursue the matter, and I am certainly happy to do so. For the reasons that I set out this morning and which my hon. Friend the Member for Leominster (Mr. Wiggin), who is unable to be with us this afternoon, reinforced, grave concern is felt by the banking community that the new provisions may turn out to be somewhat onerous. As my noble Friend Viscount Bridgeman, said in another place, we need to have an annual report to set out exactly what the costs will be and how matters will operate.

In another place on 27 January, Lord Filkin gave only a brief response to the worries expressed by my noble Friend Viscount Bridgeman, which were echoed by my noble Friend Lord Renton, and Lord Monson. Lord Bassam of Brighton gave a slightly longer response on the second occasion. I wish to refer to one or two points that were made in another place.

Stephen Hesford (Labour, Wirral West)

Will the hon. Gentleman give way?

Nick Hawkins (Conservative, Surrey Heath)

In a moment, but before I do so, I want to stress what Lord Monson said. When making reference to my noble Friend Lord Renton, he said:

''we are in uncharted waters. Parliamentarians and the public have a right to know the cost to the taxpayer of complying with the requests and to know how often such requests are made.''

Lord Monson forcefully made the point that it is not a matter of probing or calling for an annual report for the sake of it. Lord Renton said:

''The Bill breaks new ground internationally and will affect people's rights all over the world—potentially, at any rate. We should know, from time to time, what progress has been made in implementing it.

The new clause merely asks for details of the effects of requests for banking information. That is not a big demand, but it is important, and I would have hoped that the Government would be sympathetic.''—[Official Report, House of Lords, 27 January 2003; Vol. 643, c. GC142.]

Such a statement encapsulates our case in a nutshell.

Stephen Hesford (Labour, Wirral West)

The new clause does not deal with the effective administration of justice, which is what the Bill is about. It is nit-picking about cost. What price do we put on the effective administration of justice and co-operation across jurisdictions in dealing with such issues, some of which are serious to my constituents and others?

Nick Hawkins (Conservative, Surrey Heath)

If the hon. Gentleman wants to add to the annual report and wants a specific report on the effects on the administration of justice, I am sure that we would have no objection to that. However, I take issue with his saying that we are nit-picking. I am sure that the Minister will not say that when she responds. A responsible and serious organisation, such as the

BBA, said that it wants such a report because it would evaluate how much the banking provisions of the Bill are used and review the unit costs of handling individual cases and the number of inquiries received by the UK under the protocol. Its worries, which we echo, are not to be dismissed at nit-picking. The matter is important. It is not something that can be dismissed.

Indeed, from the Government's Front Bench in another place, Lord Bassam of Brighton said:

''I shall not level my common allegation that when stuck for an amendment one dreams up an annual report to demand.

I see the point made by the noble Lord.''—[Official Report, House of Lords, 25 February 2003; Vol. 645, c. GC218.]

He was responding to my noble Friend Viscount Bridgeman. The Government Front Bench in another place certainly took the matter seriously. I hope that that will show the hon. Member for Wirral, West (Stephen Hesford) that he was wrong to level at us an allegation of nit-picking. We are making a serious request, and I hope that the Minister will treat it equally seriously.

Caroline Flint (Labour, Don Valley)

Clearly, it is important that there is access to information about how the new powers under the Bill are proceeding. I suggest to the hon. Gentleman that there are different ways and means of achieving that end. As with the similar proposal in connection with freezing orders, we do not see a need for a statutory requirement for a report on the operation and the costs involved in executing requests for banking information. I understand that hon. Members were concerned that there are relatively few statistics available relating to the operation of the 1990 Act. Fortunately, technology has moved on since that Act was passed, which will make it easier to keep such statistics in future.

The Home Office keeps records and statistics on the number of requests received by and sent from the UK. Furthermore, we explicitly require all requests made on the strength of a protocol to be sent via the territorial authority for the specific purpose of monitoring the frequency and success of such requests. In that way, we will be able to identify and deal with any problems if they arise. We believe that it will be possible to obtain information on the working of the new arrangements by tabling parliamentary questions, and that that is an adequate way in which to get information of that nature into the public domain, without a statutory obligation to produce an annual report.

Furthermore, although requests to identify monitored bank accounts are new, the UK already receives and responds to other types of requests for banking information. Requests to provide copies of bank statements and other records relating to identified accounts are numerous and routine.

As was said earlier in the debate, we will be monitoring the effectiveness of all the new provisions in the Bill, and I am sure that we will still be in contact with representatives of the banking industry, to ensure

that the provisions of the Bill are not unduly onerous in achieving the task that we are discussing.

Nick Hawkins (Conservative, Surrey Heath)

I am rather disappointed with the Minister's response. I remind her that the Government's estimate of the cost to the banking industry of complying with the legislation—the Government's own regulatory impact assessment—puts the cost at between £1.26 million and £3.7 million a year. As was said in another place, it is essential that there is transparency in the matter. Although the BBA supports the measure, we must ensure that the procedure is working, and that there is proper co-operation between member states. Viscount Bridgeman quoted the BBA as follows:

''The UK, and the information which the UK will, potentially, be able to obtain will not be less or less timely than that which the UK will normally provide. Differences could arise through, for example, different legal procedures or bank secrecy rules, in particular where the retail banking structure is less concentrated than in the UK. Such differences could reduce the benefits for more ready access to information in response to requests for mutual legal assistance.''—[Official Report, House of Lords, 25 February 2003; Vol. 645, c. 218.]

As my noble Friend Viscount Bridgeman said in another place:

''An annual report will help to establish the extent to which there is a level playing field both in theory and in practice.''—[Official Report, House of Lords, 25 February 2003; Vol. 645, c. 218.]

It will also establish whether there is a level playing field. That links in to the points that I made before lunch. We are not satisfied with the Government's response, and therefore I wish to divide the Committee on the matter.

Question put, That the clause be read a Second time:—

The Committee divided: Ayes 5, Noes 9.

New Clause 6 - Commencement of Chapter 4

Nick Hawkins (Conservative, Surrey Heath)

I beg to move, That the clause be read a Second time.

We can deal with this matter rather more briefly. The new clause repeats a point that we made before lunch—that none of the provisions in the chapter should come into force until it is apparent that the other countries have introduced reciprocal provisions, and those provisions are in force. I do not want to take up too much of the Committee's time, but we thought that it would be helpful to have that in the Bill. That is

what we look forward to, and I shall listen with interest to what the Minister has to say.

Caroline Flint (Labour, Don Valley)

As the hon. Gentleman says, the subject is similar to one that we discussed earlier today. The new clause would ensure that the provisions of chapter 4 did not come into effect until all participating countries had implemented similar provisions. That is similar ground to that covered in discussion on amendment No. 88A, which sought to restrict the application of clause 32 to EU member states that had incorporated similar provisions into national law.

We think that the new clause is unnecessary. Participating countries, for the purpose of chapter 4, will be member states of the European Union, and it is inevitable that they will implement the protocol at different times. Indeed, the protocol is framed in such a way as to ensure that the failure of just one or two states to adopt the protocol does not prevent the agreement from coming into force between the other parties. The protocol provides that it will enter into force once eight member states have ratified.

We would not wish to restrict the application of our legislative provisions until the last member state ratifies. That would not be of any benefit to us, and would prevent our authorities from seeking assistance from countries that could assist. However, I stress that that does not mean that we will be responding to requests for customer information and account monitoring from those member states that have not adopted the protocol. In order to make a request on the basis of articles 1, 2 or 3 of the protocol, member states must have notified the Council of the EU under the terms of article 13.

Nick Hawkins (Conservative, Surrey Heath)

I want some helpful clarification, if the Minister can give it. If she cannot, I will accept her undertaking to write to me and the other members of the Committee on the matter. She talked about restrictions on agreements coming into force when eight member countries had ratified. Does ''ratification'' mean just that, or does it mean implementation, so that the laws in those eight member states would come into force and operate?

Caroline Flint (Labour, Don Valley)

To finish the point I was making, before I come to the hon. Gentleman's point, there is no question of states that have not adopted the protocol being able to make requests on the strength of it.

I will seek guidance on the hon. Gentleman's question, and will write to him in due course. I am trying to be helpful in saying that the protocol has to be ratified by different EU member states, but they may not all do so at the same time. We would not want a situation in which we wanted to investigate a certain matter and required disclosure of information, but could not do that with a member state that had already ratified the protocol. That is my understanding of the situation. For clarification, ''ratification'' means that the country has to be ready and able to assist. I hope that that is helpful.

Nick Hawkins (Conservative, Surrey Heath)

It is indeed. The Minister received guidance quickly and put it on the record. I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

Clause 52 - Jurisdiction for terrorist offfences

James Paice (Conservative, South East Cambridgeshire)

I beg to move amendment No. 66, in

clause 52, page 32, line 15, at end insert—

'(i) aiding, abetting, counselling, procuring or inciting the commission of, or attempting or conspiring to commit, any of the offences in paragraphs (a) to (h)'.

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss amendment No. 67, in

clause 52, page 32, line 35, at end insert—

'(e) aiding, abetting, counselling, procuring or inciting the commission of, or attempting to commit, any of the offences in paragraphs (a) to (d)'.

James Paice (Conservative, South East Cambridgeshire)

We now move to part 2, which deals with terrorist acts and threats and the issue of jurisdiction. I should say at the outset that we welcome the provisions, notwithstanding that we are proposing a couple of probing amendments to them.

The amendments are identical in effect. They would add the following to the list of offences in proposed new clause 63B of the Terrorism Act 2000:

''aiding, abetting, counselling, procuring or inciting the commission of, or attempting or conspiring to commit, any of the offences in paragraphs (a) to (h)''.

That is the list already in the Bill. I am sure that it will not be disputed that they are all serious offences, that they are all connected to terrorism or similar, and that every measure must be taken to deal with them. I hope that the Minister will confirm that these offences are covered, but my concern is that if they are not, they are not in the Bill. They are in article 4 of the framework decision, which was clearly stated in the debate in the other place. The Government have set out a list of offences beginning at the bottom of page 31 and going on to page 32. Why does that not include the offences that we have listed in our amendment? Either a list is not produced in the Bill, as it is impossible to be sure that everything is covered, or an exhaustive list is produced. Those of us who have sat through many Committees have had this debate on several occasions. To have a list that is not exhaustive seems to fall between two stools.

The Government have listed a range of offences, with which I do not disagree, but they do not make it clear that the offences listed in amendment No. 66 are covered, despite the fact that they are in the framework decision. We are taking extra-territorial jurisdiction over substantive offences, which in itself is a major legal step, so we need to ensure that it is clear in the legislation what is covered. My point is simply one of clarification. Why, having started on the road to list offences covered by the clause, have the Government not listed all the offences? If I am right in assuming that the offences listed in our amendment are covered, why are they not in the Bill?

David Heath (Liberal Democrat, Somerton and Frome)

We are moving on to a new and important part of the Bill. I shall place on the record

the view of my party that this is an important provision that we support in principle. There should be the extra-territorial jurisdiction.

I share some of the concerns of the hon. Member for South-East Cambridgeshire. Lists inherently are not always the best way of dealing with such matters. I presume that the list exists because the agreement under the framework directive requires offences to be specified, as opposed to the more general terms for terrorist offences required by terrorist legislation, which are defined in the Terrorism Act 2000.

The hon. Gentleman went on to suggest that it is necessary to provide for the additional offences of aiding, abetting, conspiring, et cetera. There is an interesting, although not illuminating, reference to that in explanatory note 119, which states:

''Where an extra-territorial offence is created, extra-territorial jurisdiction is also automatically taken over secondary and inchoate offences, such as aiding, abetting, attempting, inciting, conspiring, counselling or procuring.''

In other words, the explanatory notes suggest that the hon. Gentleman's concerns are already covered, but it is not clear how. We are writing British law, not a European directive, and our law usually requires matters to be spelt out. If one is creating an area of jurisdiction that deals with specific offences, we would usually expect to identify what those offences are.

I certainly do not have the expertise, not only in English and Welsh law, but in Scottish and Northern Irish law, to know that in each case there is a secondary offence other than the broad ''criminal conspiracy'' and descriptions of that kind. There are specific offences in each of these instances of aiding, abetting, counselling, procuring, et cetera. If they are specific offences, it is sensible to list them. If they are not specific offences, I am unsure whether we can invent them by inference, which would appear to be the case here.

I ask the Minister how this list may or may not be amended in future, because there does not appear to be express provision for amendments to the list of specified offences over which we are taking jurisdiction. Usually, in a Bill of this kind, that is done by negative resolution whenever there is a new agreement in the Council of Ministers, and we have debated that. However, that does not appear to be case in this instance. Does that mean that we would need new primary legislation if there were to be any amendments to that list by agreement or otherwise? If a crime was committed for terrorist purposes that does not appear in this list, can we assume that it would not be subject to the extra-territorial jurisdiction? I presume that that is the case and that, despite the fact that that has formed part of a criminal act that was linked to terrorism, we cannot assume that we would have such jurisdiction in those circumstances? Does the Minister believe that the definition is watertight in all contexts? If a new law were to be made by a constituent part of the United Kingdom, how would that be incorporated within this provision in the Bill?

There are a series of interlocking questions, the answers to which are important to our understanding of this part of the Bill, and I should be grateful if the Minister would give us an extensive reply so that we can be clear about what we are talking about.

Caroline Flint (Labour, Don Valley)

The discussion has been useful. As the hon. Member for South-East Cambridgeshire pointed out, these are probing amendments, and I hope that my explanations on the points that have been raised will clarify matters and reassure him.

We have taken full account of the requirements of article 4 of the framework decision on combating terrorism, which these clauses implement. The hon. Gentleman referred to paragraph 119 of the explanatory notes, which states:

''Where an extra-territorial offence is created, extra-territorial jurisdiction is also automatically taken over secondary and inchoate offences''.

Article 4 of the framework decision on combating terrorism requires member states to ensure that inciting, aiding, abetting or attempting to commit an offence referred to in articles 1, 2 or 3 of the framework decision is made punishable. Article 9 requires member states to take extra-territorial jurisdiction over the offences listed in article 4 in certain circumstances.

I hope that the next point addresses some of the hon. Gentleman's particular concerns. Under UK law, jurisdiction for

''secondary and inchoate offences, such as aiding, abetting, attempting, inciting, conspiring, counselling or procuring''

is dependent on whether we have taken jurisdiction for the substantive offence in the UK. As we are taking extra-territorial jurisdiction over the substantive offences listed in articles 1, 2 and 3 of the framework decision in certain circumstances, we do not need to legislate specifically in order to take extra-territorial jurisdiction over aiding, abetting, attempting, inciting, conspiring, counselling or procuring to commit the offences listed in new sections 63B and 63C of the Terrorism Act 2000, in the particular circumstances described in them. Rather,

''Where an extra-territorial offence is created, extra territorial jurisdiction is also automatically taken over secondary and inchoate offences''.

My understanding is that no further legislative provision is necessary to achieve that. I can provide the hon. Gentleman with other examples of legislation when extra-territorial offences are created, but no provision is made for secondary and inchoate offences, such as the Taking of Hostages Act 1982, the Nuclear Material (Offences) Act 1983, the United Nations Personnel Act 1997, the Anti-terrorism, Crime and Security Act 2001 and the Chemical Weapons Act 1996.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. Lady's response has been helpful, but it begs the question of where such matters are set out in British law. The assumption is that they exist under British law. I just wonder where. There must be a statute that says that, when we take territorial jurisdiction for a substantive offence, we also take similar jurisdiction for the secondary

offences. Obviously, the Minister has not been provided with a reference to that.

Caroline Flint (Labour, Don Valley)

I hope shortly to provide an answer to that question. Another earlier point was how we take extra-territorial jurisdiction for, say, a new offence. If we create a new offence and wish to take extra-territorial jurisdiction for it, there would have to be a consequential amendment in the legislation. We would have to come back to it. As for the relationship between UK and international law, a rule of common law has been developed over time. We can provide further details, if required. I hope that that satisfies the hon. Gentleman.

James Paice (Conservative, South East Cambridgeshire)

I am grateful to the Minister for her reply and reassurances. I thank the hon. Member for Somerton and Frome for helping me to wheedle out some of the facts from her. Obviously, it is important that such matters are covered under the Bill. I accept at face value her assertion.

Sylvia Hermon (UUP, North Down)

Does the hon. Gentleman agree that the Bill has huge potential to deal with international financing of terrorism? Is it his understanding that the Minister's explanation covered that point?

James Paice (Conservative, South East Cambridgeshire)

The Minister may wish to intervene to clarify the situation. I argue that financing is covered by aiding and abetting. I am not a lawyer, however, so others may argue that it is not. If the Minister does not have time to intervene, I am sure that she will write to us and confirm whether financing is covered by the Bill. Obviously, there would be a major hole in the Bill if it were not covered. I shall assume that it is. However long I prevaricate, it seems that the Minister will not respond. I shall happily give way to her.

Caroline Flint (Labour, Don Valley)

The example cited by the hon. Gentleman of aiding and abetting would apply to the financing of terrorism. I am happy to receive further details about the matter to make sure that the hon. Member for North Down is reassured.

James Paice (Conservative, South East Cambridgeshire)

I am grateful to the Minister. On the strength of her answer, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

James Paice (Conservative, South East Cambridgeshire)

I beg to move amendment No. 68, in

clause 52, page 32, line 38, after 'of', insert 'or employed by'.

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss amendment No. 69, in

clause 52, page 32, line 43, after 'of', insert 'or employed by'.

James Paice (Conservative, South East Cambridgeshire)

I wish to clarify the exceptions under clause 52 and whether ''members of'' a United Kingdom diplomatic mission covers all employees, including locally recruited people. That is the simple question behind the amendment. I am sure that all our embassies and diplomatic missions recruit locally, and once those people are part and parcel of the establishment, they deserve the protection provided by the new section. We know what being a Member of this place involves, but it is unclear whether being a ''member of'' a diplomatic mission includes employees.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. Gentleman is making an extremely important point. Locally recruited staff who

are not part of the mission but serve within it would have no diplomatic status and would therefore need the protection of the new section, especially as they are perhaps the most likely to be injured by any terrorist attack on premises owned by the Foreign and Commonwealth Office.

James Paice (Conservative, South East Cambridgeshire)

The hon. Gentleman is right. If, God forbid, there was a terrorist attack on one of our missions abroad, it would be wholly unjust if the protection given to members was different from that given to those who were not members but in the same room when the attack took place. I am trying to ensure only that the term ''member of'' includes locally recruited employees. It is a straightforward but important point.

Caroline Flint (Labour, Don Valley)

It is helpful that the hon. Gentleman raised the issue so that we can clarify on the record which people working in our missions overseas will be protected.

New section 63C(1) of the Terrorism Act 2000 gives the United Kingdom extra-territorial jurisdiction over certain domestic offences when they are committed against UK nationals, residents or ''protected persons'' outside the UK as an act of terrorism or for the purposes of terrorism. Subsection (3) specifies those persons who are ''protected persons'', which includes, inter alia, a member of a UK diplomatic mission within the meaning of article 1(b) of the Vienna convention on diplomatic relations 1961, as given effect in the UK by section 2 and schedule 1 of the Diplomatic Privileges Act 1964. It also includes a member of a UK consular post within the meaning of article 1(g) of the Vienna convention on consular relations 1963, as given effect in the UK by section 1 and schedule 1 to the Consular Relations Act 1968.

I want to make it clear that the definitions of ''member'' of a diplomatic mission and consular post outlined in those Acts include the employees of the mission and consular post, as the definition includes diplomatic, technical, administrative and service staff of the mission. I hope that that reassures the hon. Gentlemen that employees are already covered within the meaning of ''members''.

James Paice (Conservative, South East Cambridgeshire)

To double check, does that include locally recruited nationals of the foreign country?

Caroline Flint (Labour, Don Valley)

Yes, I am pleased to confirm that that does include locally recruited people. They contribute greatly to our services overseas, and we would expect them to be protected in the legislation.

James Paice (Conservative, South East Cambridgeshire)

I am grateful to the Minister for her clarification. She has put on record what I wanted to hear. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

David Heath (Liberal Democrat, Somerton and Frome)

I want to ask just a couple of questions on the operation of the clause.

In the clause, the provisions for United Kingdom nationals are extended to nationals of the overseas territories and British overseas citizens. When would a person who has committed what would have been an

offence in the UK face prosecution as a British overseas national or overseas territory citizen in the courts of the UK rather than in the courts of that territory? That may be an unanswerable question, and the provision may exist simply to allow for all circumstances to be taken into account. However, is similar legislation envisaged in the British overseas territories to allow them extra-territorial jurisdiction over their own citizens so that a national of the Turks and Caicos Islands—therefore a British overseas territory citizen—could be tried in the Turks and Caicos Islands, Gibraltar or wherever?

If an offence is committed overseas that would be an offence in any part of the United Kingdom, what would direct that a case would be heard and an indictment made and under what jurisdiction? Would it be at the direction of the Secretary of State, in consultation with the Lord Advocate or Scottish Ministers? In what circumstances would a case be tried in a Scottish court rather than an English or Welsh court for an offence that had not taken place in Scotland, England or Wales, and where the citizen involved was not resident in Scotland, England or Wales?

At the bottom of page 32, there is a curious distinction for the European Agency for the Evaluation of Medicinal Products, for which the explanation in the explanatory notes is that this is the only body of its kind based in the UK. We should be upset about that, if that is the case. It seems odd that the agency should be singled out in the legislation. It may be only temporarily the only EU body in the UK. Other bodies may come later, or it may move.

This part of the Bill deals with attacks abroad on UK nationals, residents and diplomatic staff, and is trying to identify those people who are protected persons. It is therefore odd that the definition of protected persons gives an agency that is situated in the UK, not abroad, as its only specific reference to international bodies. I would have expected a list or a schedule of more international bodies to be provided, and for the more important bodies to be in countries overseas where we would wish to assume jurisdiction, rather than for an agency to be in this country where we must assume that we already have jurisdiction. I am sure that there is a good reason for this, but it does not come to mind at the moment.

Caroline Flint (Labour, Don Valley)

Just when one thinks that it is safe . . . There are no plans for similar legislation in overseas territories. That would be a matter for them. In an earlier discussion today, I said that we would provide a note on how the Bill will affect overseas territories. Gibraltar was mentioned.

The hon. Gentleman also asked which state would prosecute. If the offence was committed abroad, the question of where the defendant is tried in the UK would depend on whether the suspect was arrested in the UK and, if so, in which part. The second main factor is which prosecuting authority in the UK sought extradition of the suspect if he was arrested abroad. If the English Crown Prosecution Service sought extradition, it would probably be in England. In

such cases where there may be competing claims from the states involved relating to who will prosecute the subject, the extradition arrangements between states will be used to decide which jurisdiction will prosecute the suspect. I hope that that answers the hon. Gentleman's question.

I will write to the hon. Gentleman about his final point in due course.

Question put and agreed to.

Clause 52 ordered to stand part of the Bill.

Clause 53 ordered to stand part of the Bill.

Clause 54 - Application of section 55

James Paice (Conservative, South East Cambridgeshire)

I beg to move amendment No. 70, in

clause 54, page 36, line 4, leave out 'in prescribed circumstances' and insert

'where a member state other than the United Kingdom has declared that it will apply discretionary conditions to the recognition of disqualifications, as described in Article 6(2) of the Convention on Driving Disqualifications 1998'.

In passing, I commend the Minister on the way in which she has fulfilled her responsibilities on her first day in this Committee. I also welcome the latest addition to our discussions, the Under-Secretary of State for Transport. He is here in name but he has not been present in person for most of the proceedings so far. I welcome the Minister, who will handle the chapter dealing with driving disqualifications.

Amendment No. 70 is a probing amendment, as so many of the amendments are. It would amend subsection (4), which says

''Section 55 does not apply in prescribed circumstances.''

Later, we are told that ''prescribed circumstances'' basically means whatever a Minister says. I want to hear from the Minister what is really meant by the term. We are seeking to remove ''prescribed circumstances'' and instead say that clause 55 should not apply

''where a member state other than the United Kingdom has declared that it will apply discretionary conditions to the recognition of disqualifications''

in the convention. It is perfectly clear what we mean by that. Obviously, if another country has decided not to apply the convention in total, but will apply discretionary conditions from the convention, that should be reflected in how we deal with that country. It is quite clear that clause 55 should not apply in those circumstances.

There may well be other circumstances in which clause 55 should not apply that I cannot think of at present. I shall not pretend to the Minister that I am unduly wedded to the insertion that the amendment would make, although I think that it is important, and the situation that I mentioned certainly needs to be a prescribed circumstance. I want to know what other circumstances the Minister thinks could be prescribed, apart from his jocular agreement that they are anything that a Minister thinks they should be. It is important to put on record the sort of circumstances in which the Minister envisages clause 55 not applying.

David Heath (Liberal Democrat, Somerton and Frome)

I agree with the hon. Gentleman. Subsection (4) is the sort of provision that brings Government into disrepute. The provision should not be framed in that way; it must be more specific. I hope that the Minister can give us the full range of circumstances in which he would expect the provision to apply, and the terms under which it would be prescribed.

David Jamieson (Labour, Plymouth, Devonport)

It is a pleasure to appear in Committee before you this afternoon, Mr. Benton. It has also been a pleasure to listen to the Under-Secretary of State for the Home Department, my hon. Friend the Member for Don Valley, on her first outing in her new job. I seem to have survived eviction from the ''Big Brother'' household for another year, but I dare say that I might be nominated on another occasion.

Clause 54 describes when the duty to notify a driver's state of residence would apply, so that a disqualification imposed in the United Kingdom on a resident of another member state could be enforced under the EU convention. Clause 54(4) allows regulations to specify when the requirement to notify will not apply. That is necessary because article 6 of the convention allows member states to declare that they will always refuse to enforce a disqualification where the conduct does not constitute an offence in that state, where the driving disqualification would not be a measure available in that state for the conduct involved, or if the remaining period of disqualification is less than one month.

Regulations are required to detail the exact terms of the declaration made by the state concerned. The EU convention allows a member state—this is the important point for the hon. Member for Somerton and Frome—to declare that it will always apply the conditions in article 6(2)

''in part or in full''.

It may also withdraw from its declaration at any time.

The amendment is too broad. It would not discriminate in its application according to the terms of the declaration made by each state. That is why we need regulations—to take into consideration the different circumstances of individual states or changes in circumstances, which may occur from time to time. That is the reason for the provisions in the clause that we are discussing.

We do not know at this stage how many member states will make a declaration in respect of article 6(2). That will become clear only as and when other member states ratify the convention. We intend to seek agreements with those member states to allow us to implement the convention on a bilateral basis in advance of full implementation. Given the changing circumstances and considerable amount of flux, the part of the clause that we are discussing is required. I can assure the hon. Members for South-East Cambridgeshire and for Somerton and Frome that the Government have no ulterior motive in inserting the clause into the Bill.

James Paice (Conservative, South East Cambridgeshire)

The Minister said what I suspected he would say—that everything would be done in regulations—but he added a little more, particularly

about our not yet knowing which countries will apply discretionary conditions to the convention. That seems a fairly reasonable response, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

Nick Hawkins (Conservative, Surrey Heath)

I shall not detain the Committee long. I, too, welcome the Minister who is responding to this aspect of the Bill. He will have noticed that Opposition Members tabled a new clause to deal with disqualified drivers and their insurance, which is of interest in the media and the country as a whole, but sadly it was not selected. I applied my ingenuity as carefully as I could, with the enormous help of the Clerk to the Committee. The Clerks are always tremendously helpful, but whatever ingenuity I was able to summon up, I could not draft the new clause in such a way that it was selectable. However, it appeared on the amendment paper, so no doubt the Minister had an opportunity at some stage to look at it briefly in case it was selected.

I simply want to state on the record before we vote in the Chamber that whether we are talking about drivers from overseas, to which the main purpose of this part of the Bill relates, or UK drivers, there is great concern in the country about what might happen if someone is convicted of the offence of not having insurance, because it is understood that the Government might be contemplating a change in the arrangements for sentences. The concern is that the sentence for not having insurance, particularly for young drivers, will, according to guidance from the sentencing council, be a fine lower than the cost of insurance. In that case, given how those in their late teens, who are new drivers, tend to think, there will no incentive for them to get insurance policies.

Having children and stepchildren in their late teens, I know that it is very expensive for new drivers to get insurance. It quite often costs more than £1,000. It was recently suggested that the Government might be contemplating saying to magistrates courts that the sentences for such offences would only be of the order of fines of £200. If we move in that direction—I certainly urge the Government not to do so—an awful lot of young drivers will say that it is much cheaper to pay the fines. I see the Parliamentary Private Secretary, the hon. Member for Brent, North (Mr. Gardiner), nodding. He understands what I am saying, because he has a child of a similar age to one of mine. We need to fire a warning shot across the Government's bows, even though I did not succeed in drafting a new clause to deal with the matter.

I am sure that the Minister is listening to what I have to say. I hope that, even though he may not be able to respond in great detail now, he will report back to his fellow Ministers, and that the Home Office and the Department for Transport will ensure that we do not go down that road. There are too many young uninsured drivers on the roads. I see the Minister nodding. We do not want that situation to get worse, so I hope that the rumours that the sentences, the guidance to magistrates and even the law might change

will prove unfounded or, if there is such a plan, that the Government will have second thoughts.

David Heath (Liberal Democrat, Somerton and Frome)

It was rather discourteous of me not to welcome the hon. Gentleman during my last contribution. I shall put that right now, although I feel that he was with us at least in spirit.

I confess that this part of the Bill, for me, is the most opaque. I have little experience of traffic offences, and I find it difficult to understand some of the provisions. However, I am sure that the Minister can help me in two respects. First, can he confirm my understanding that the whole clause deals only with road traffic offences that are genuinely road traffic offences—in other words, that disqualification from driving was the result of having committed an offence in a motor car, and not for reasons unrelated to traffic offences? I think that he will tell me that I am right. Secondly, is there anything in the clause that allows for transfer of information about partial disqualifications or endorsements of driving licences that fall short of full disqualification?

Sitting suspended for a Division in the House.

On resuming—

David Jamieson (Labour, Plymouth, Devonport)

I thought that the hon. Member for Surrey Heath was rather clever—I have never said it before—by speaking to an amendment that had not been called. At one stage, he said that my hon. Friend the Member for Brent, North was nodding in approval, but he told me that he was nodding off.

It is true that there is a fixed penalty of £200 plus six penalty points for having no insurance. The hon. Member for Surrey Heath knows that if a case goes to court under section 143 of the Road Traffic Act 1988, a fine of up to £5,000 and between six and eight penalty points can be imposed and it can result in discretionary disqualification. If someone receives a fixed penalty and is caught again a few days later, he will receive another fixed penalty, although repeat offenders are likely to be taken to court.

Nick Hawkins (Conservative, Surrey Heath)

I am grateful for the Minister's congratulating me on my ingenuity. I think that I ought to defend the character and reputation of the Parliamentary Private Secretary. He was not nodding off. Despite the badinage, I know the difference between someone nodding off and someone nodding in agreement.

The Minister understands our concern about the fixed penalty. Our argument is that all cases should continue to be heard in court. They always were when I was prosecuting or defending cases at the Bar. I hope that the Minister will deal with the issue seriously—he has already started—and will reflect on the points that I raised, which have received extensive media coverage.

David Jamieson (Labour, Plymouth, Devonport)

This is probably not the place for such a debate, but some important points have been raised. Road safety is an important part of my brief.

That is why we are enforcing vehicle excise duty—the road tax—so vigorously; many of those who have no road tax have no insurance or MOT certificate, and they often are committing other offences. However, that is enough of that.

The hon. Member for Somerton and Frome asked about other types of disqualification. I assure him that disqualification applies only to road traffic offences. I believe that one can be disqualified for not paying CSA payments, and one can be disqualified on medical grounds, but that would not apply in another country.

The hon. Gentleman then spoke about endorsements. That is a little more complex, and I wonder whether he meant penalty points. The penalty points system is different in each country—and non-existent in some. The totting-up arrangements allow the points to be totalled, and in this country, those who have 12 points are disqualified. In other words, it is only the act of disqualification that is recognised on a bilateral basis by countries, not penalty points, not least because the system varies so widely across the European Union.

Question put and agreed to.

Clause 54 ordered to stand part of the Bill.

Schedule 3 agreed to.

The rest of the debate is in Hansard.