Serious Organised Crime and Police Bill

Public Bill Committee, 13 January 2005.

Standing Committee D

Serious Organised Crime and Police Bill

Andrew Mitchell (Conservative, Sutton Coldfield)

On a point of order, Mr. O'Brien. In view of the content of some amendments, I should draw the Committee's attention to my interests as a director of an investment bank, which are set out in the Register of Members' Interests.

Jonathan Djanogly (Conservative, Huntingdon)

Further to that point of order, Mr. O'Brien. I should declare an interest as a practising solicitor.

New clause 2 - Restrictions on further disclosure

New clause 3 - Directed arrangements: Scotland

Clause 54 - Investigatory powers of DPP etc.

Caroline Flint (Labour, Don Valley)

I beg to move amendment No. 31, in clause 54, page 29, leave out lines 17 and 18 and insert 'Revenue and Customs Prosecutor.'.

Welcome to our proceedings, Mr. O'Brien. I hope that we shall make as much progress as we did on Tuesday.

Amendment No. 31 is a textual amendment to reflect the type of Customs and Revenue protection being set up in the Commissioners for Revenue and Customs Bill.

Amendment agreed to.

Clause 54, as amended, ordered to stand part of the Bill.

Clause 55 - Offences to which this Chapter applies

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 99, in clause 55, page 29, line 29, after 'offences', insert

'which appear to the investigating authority on reasonable grounds to be of sufficient seriousness to warrant investigation pursuant to this Part'.

Welcome to the Committee, Mr. O'Brien. We move now to the widening of the powers of coercion and the investigatory powers of the Director of Public Prosecutions and others. It is well understood—I certainly understand—why exceptional powers are extended to the investigation of serious fraud, and the power to compel a witness to produce documents and answer questions has existed for some time. There are equally strong arguments for extending the same powers to the work of the new agency and to other serious organised crime cases. I would not quarrel with that; such powers are exceptional but perhaps necessary to ensure that the evidence is there. However, it is reasonable to suggest that there should be some limit to the extension of such extraordinary powers.

The amendment would require the investigating authority specifically to consider whether the suspected offence was sufficiently serious to warrant the use of compulsory questioning. In other words, it introduces a threshold determination, which must be made before the powers are used. It is necessary for clause 55 to extend the powers over quite a wide range of offences because organised crime covers a wide range of offences, but that serves only to enforce the need for a threshold of seriousness. One would not want these powers to be used in an arbitrary way, and I am sure that that is not the Minister's intention. Including the safeguard in the amendment would be a sensible precaution, and I commend it to the Committee.

Dominic Grieve (Conservative, Beaconsfield)

As we are coming to what to my mind is a very important part of the Bill, I shall take this opportunity to say a few words about the principle of the amendment moved by the hon. Member for Somerton and Frome (Mr. Heath). I apologise to the Committee for having to be absent after 10 o'clock as I have to go to a funeral.

The hon. Gentleman is right to emphasise that the powers should be used only in serious cases. I have considerable anxiety about disclosure notices generally. They are draconian in scope and, as we will see when we consider the form of the notices in slightly greater detail, they involve not only the production of documents but the power to compel people to answer questions. The only other setting in which they could be compelled to answer questions is in a court of law when giving evidence from the witness box.

In this country, we have consistently shied away from giving such powers; we do so only for exceptional reasons. They are normally given only in cases of serious financial fraud and cases involving the operation of the Companies Acts, and it is controversial that it is so. One of the justifications for doing so is generally the belief that when dealing with a large financial organisation, questions will be asked of individuals who are intimately concerned with its operation.

In the Bill, however, such powers are being extended to the general criminal law. That worries me, and I am unconvinced by the scope of some of the powers. The operation of the Serious Organised Crime Agency is somewhat nebulous around the edges, and we will be giving powers to ordinary criminal investigators that the police would not have. The only way in which the police can obtain answers to questions is to issue a witness summons. The point is unusual, but it can be dealt with in a number of ways. We can certainly try to deal with it in the way suggested by the hon. Gentleman, by emphasising that we are dealing only with cases of ''sufficient seriousness''. Later this morning, under other amendments, we could consider in detail whether the powers that we are giving to SOCA are too wide.

All that bothers me. I am grateful to the hon. Gentleman for having raised the issue, and I wait with interest to hear what the Minister has to say.

Jonathan Djanogly (Conservative, Huntingdon)

I very much agree with my hon. Friend. The powers in the clause and chapter 1 already exist in the Companies Acts, such as the power to go to the Department of Trade and Industry, and the Enterprise Act 2002 gives similar powers to the Serious Fraud Office. The implication is that those powers have been aimed at business-type fraud, and it is probable that we have not heard an outcry about them because those who have been subjected to them have tended to have the money to represent themselves, or their companies have paid for representation. Broadening the powers towards the whole population through the general criminal law is a different issue, and we need a different way of looking at it.

No benchmark exists. The Bill deals with serious organised crime, but the vast majority of criminals to be subjected to the powers under chapter 1 will have had nothing to do with serious organised crime. At a time when the law fraternity, Liberty and many other organisations are highlighting the way in which the Government have been cutting back on legal aid and therefore removing people's right to representation, that is a great concern. In this clause, we see their right to silence being taken away. I have other serious concerns, which will come out during our debates on chapter 1.

Caroline Flint (Labour, Don Valley)

As Opposition Members have questioned the purpose of the disclosure powers, I shall remind the Committee why we are discussing the issue. On Tuesday, we had extensive discussion about the ways in which organised criminals operate. They might be involved in a variety of activities, from tax evasion and fraud to trafficking drugs or people. Ultimately, they wish to protect their criminal assets and, like other entrepreneurs, they seek to diversify.

We have consulted widely on disclosure powers. We recognise that they are important and serious, and that the way in which they are used has to be safeguarded. They should be used in investigations into serious offending. A number of people, including the Law Society, have raised concerns about the potential for the notices to be used too widely. We share that concern but have made it clear on a number of occasions that the notices will be appropriate only in relation to serious crimes. That is why we have restricted the offences in relation to which they might be used to those listed in clause 55, the majority of which are always serious. They are: trafficking in drugs, money, people or arms; counterfeiting; intellectual property theft; blackmail; organising prostitution; terrorist funding offences; and certain tax and excise offences. Specialist prosecutors, who will have the power to authorise disclosure notices, will not issue them unless they believe that the offending is sufficiently serious to justify them, and the Attorney-General will produce guidance.

Jonathan Djanogly (Conservative, Huntingdon)

I should be grateful if the Minister spent a little time explaining who is to be a special prosecutor and what the role will involve, so that the committee knows the scope of those who will be able to issue the orders.

Caroline Flint (Labour, Don Valley)

I can cover that in more detail when we discuss the next group of amendments. As I said on Tuesday, we have been working with the Attorney-General to identify a cadre of prosecutors who will work closely with the Serious and Organised Crime Agency—in some cases, they will work in the same location as SOCA staff—and who will be authorised to issue disclosure notices. The Attorney-General will produce guidance on all issues affecting disclosure that will involve his prosecutors.

Jonathan Djanogly (Conservative, Huntingdon)

Would the cadre that the Minister mentions be central—not local prosecutors but SOCA employees?

Caroline Flint (Labour, Don Valley)

No, they would not be SOCA employees. We had that discussion on Tuesday, and we are going rather wider than the amendment. On Tuesday, we discussed preserving the independence of the prosecuting function. That is why the prosecutors delegated to carry out the task will be under the authority of the Director of Public Prosecutions. Having said that, because they will work closely with SOCA staff, some of them might be based in buildings alongside SOCA staff. However, I think that I made the lines of accountability clear on Tuesday—prosecutors will not be accountable to the director general of SOCA. Prosecutors will not issue disclosure notices unless they believe that offending is sufficiently serious to justify them and, as I have said several times, we will issue guidance under which they will operate. That will make clear what factors they should take into account when considering seriousness. Therefore, we do not think that it is necessary or appropriate to specify them in the Bill, and I ask the hon. Member for Somerton and Frome to withdraw the amendment.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful for the support of the hon. Members for Beaconsfield (Mr. Grieve) and for Huntingdon (Mr. Djanogly) on this serious matter. I have listened carefully, and I have no objection to the Minister's stated intention. My problem lies in the fact that nothing in what she has said is inconsistent with the proviso that I propose to add to the Bill. She relies on the policy of the Director of Public Prosecutions remaining, or even being initiated, in the form that she requires. Although she says that she is referring only to cases of serious organised crime, that is not what the statute says. We have to rely on what the statute says, not on the intentions of Ministers when they propose measures.

I draw the Minister's attention to the list of offences in clause 55 to which the chapter applies. She said that those were serious cases. In most cases, they are serious offences, but let us not be foolish. For instance, the fraudulent evasion of duty under clause 55(1)(d) can deal with serious organised crime organising shiploads of cigarettes, but it can also apply to the cross-channel ferry driver and tourist who has come back with a little too much in his boot.

Caroline Flint (Labour, Don Valley)

The hon. Gentleman is quite right to draw attention to the fact that tax and excise fraud can be a very serious matter. We know that organised crime gets involved in those activities, and we estimate the cost to the UK to be billions of pounds.

The Director of Revenue and Customs Prosecutions will draw up strict guidance on the use of disclosure notices by Her Majesty's Revenue and Customs. Our intention is to restrict the use of notices to serious organised crime investigations rather than low-value fraud cases. The Paymaster General has announced a review of the powers available to Her Majesty's Revenue and Customs, and we will await the outcome of that review before we implement disclosure notices for the tax and excise fraud offences. I hope that that gives the hon. Gentleman some reassurance that we do not want to create a huge catch-all for such offences and are mindful that notices should be used proportionately.

David Heath (Liberal Democrat, Somerton and Frome)

That gives me reassurance, but it reinforces my view that the concerns that the hon. Lady is expressing as a Minister of the Crown are exactly those that I am expressing as an Opposition member of the Committee. I want to see them framed within the clause to make sure that her assurances are given weight in law. I find no discontinuity between what I suggest as an addition to the Bill and her assurances on how the Bill will work.

Clause 55(1)(e) refers to the Theft Act 1968 and false accounting. Practically every crime that has a financial aspect may involve false accounting. An extraordinarily wide web of offences is therefore brought under the draconian provisions on disclosure. I understand the Minister's intention perfectly well, but I hope that she will understand that if those intentions are to be laid out in statute, a threshold requires to be built into the clause. Otherwise, we will be entirely reliant on the advice at any given time of the Director of Public Prosecutions or other prosecuting authorities. They will have the statutory power to use the disclosure capacity in a wide range of cases. For those reasons, I believe that the amendment is a necessary addition.

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 8.

Clause 56 - Disclosure notices

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 172, in clause 56, page 30, line 32, leave out 'expedient' and insert 'necessary'.

Subsection (2) provides the grounds on which an investigating authority may give a disclosure notice or authorise an appropriate person to give one. There are three such grounds, the first of which is if it appears that

''there are reasonable grounds for suspecting that a person has committed an offence'',

which we would all understand. The second ground is if

''the conditions in subsection (1)(b) and (c) are satisfied'',

which refers to a person who has information about an offence. Then there are the rather curious grounds on which a disclosure notice may be given, in subsection (2)(c), which are if

''there are exceptional circumstances making it expedient to do so''.

Such circumstances are those that apply neither to a person who has committed an offence or is suspected of having done so, nor to a person having information about an offence or suspicions of one having been committed.

I am not absolutely clear when the subsection might apply. What are the exceptional circumstances in which a prosecuting authority could apply a disclosure notice to somebody who neither is suspected of having committed an offence nor has information about an offence being committed? Paragraph (c) seems odd indeed.

Assuming that the Minister can explain why the provision is there in the first place and will describe the circumstances in which it might be used—I hope that she will give one or more examples—I do not think that the question should be one of expediency. Using such an extraordinary measure, under such extraordinary circumstances, should be a matter of the utmost gravity. I object to the word ''expedient'', because expediency can take many forms. It might mean the convenience of the prosecuting or investigating authorities, but it could even mean enabling a person to go home in time for tea. Expediency is not a sufficient test.

The amendment is therefore simple and would leave out ''expedient'' and insert ''necessary'', which would at least ensure that the disclosure notice would be required only because it was necessary to complete the investigation, which should surely be the starting point of any consideration anyway. I also hope that the amendment will give the Minister an opportunity to explain why subsection (2)(c) is in the Bill at all and to describe the circumstances that might require it to be used.

Tony McWalter (Labour/Co-operative, Hemel Hempstead)

I hope that the Committee will resist the amendment. The Liberal party is dealing with the issue in an extraordinary way. When serious offences are being committed, quite often the first thing that the police come across is a rather trivial offence.

I have just been on the parliamentary police scheme. One of the cases that we looked at was that of a builder who had dumped some rubble in front of the house of somebody who had not paid for their driveway. However, underlying that trivial matter—although it was not so trivial for the people who could not get into their house—was a sophisticated network of people knocking off driveway materials and cheating the Inland Revenue and Customs and Excise on a huge scale. It was only because an apparently trivial offence was seen as the tip of an iceberg and referred to those capable of dealing with interwoven networks that that network of serious offences was picked up.

It is sometimes necessary to get information by requiring people to say in the first place, for example, exactly where they got their driveway materials. I hope that the Minister will resist the extraordinary idea that serious offences should come with a big sign on their foreheads saying, ''This is a serious offence.''

Caroline Flint (Labour, Don Valley)

My hon. Friend the Member for Hemel Hempstead (Mr. McWalter) is right to say that we are dealing with a spider's web of connections and networks. I have talked before about criminal entrepreneurs who corrupt legitimate businesses in pursuit of their aims. We need safeguards and we have safeguards in the Bill.

The hon. Member for Somerton and Frome raises an important point about when it is appropriate to give a disclosure notice to a person suspected of one of the specified offences. Several hon. Members raised that on Second Reading. Our intention is that notices will usually be given to people other than the primary suspects, partly as they are more likely to co-operate and partly because of the protections against self-incrimination for the subject of the notice.

As my hon. Friend the Member for Hemel Hempstead said, however, the full involvement of all the players in complex organised criminality is often not obvious at the beginning of an investigation. Also, in certain circumstances the prosecutor may decide to give a notice to someone suspected of one of the offences anyway. For example, a junior member of a criminal group may be suspected of one of the specified offences, but the prosecutor may believe that serving a notice on him would provide information of substantial value to the wider investigation, and that the benefit of that would outweigh not being able to use a self-incriminatory statement made by the junior member.

The clause currently creates a bit of an artificial statutory distinction between those suspected of an offence on the list and others. The analogous powers work effectively without such a legislative distinction, and prosecutors can manage the issues in deciding whether to issue a notice against a suspect, based on their oversight of the full investigation. I therefore propose to introduce amendments on Report to remove that distinction.

I draw to the attention of the hon. Member for Somerton and Frome the word ''and'' between paragraphs (b) and (c) of clause 56(2). The provisions do not stand alone. His amendment would strengthen the artificial distinction. Rather than leaving the matter to the prosecutor's discretion, it would allow someone suspected of one of the specified offences to be given a disclosure notice only when it was ''necessary'' to do so. In practice, it would be quite difficult to argue that it was necessary to interview anyone, so I call on him to withdraw the amendment and to understand the reasons why prosecutors should have flexibility, albeit based on comprehensive guidelines on disclosure, which provide safeguards for individuals against self-incrimination.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful for the Minister's explanation. The fact that she will rewrite the clause gives me some comfort, because it is not worded entirely sensibly. I could launch into a tirade of invective against the hon. Member for Hemel Hempstead.

Andrew Mitchell (Conservative, Sutton Coldfield)

It's too early.

David Heath (Liberal Democrat, Somerton and Frome)

It is too early in the day, although the extraordinary comments of the hon. Member for Hemel Hempstead would not have been out of place in the ranks of the Stasi—''We have ways of making you talk and it doesn't matter what offence you have committed.'' The matters raised are serious, but so are justice and the legal system. The idea that we can extend willy-nilly enormously intrusive powers of coercion will not do, even in new Labour. I am grateful for the Minister's explanation of the limitations of what she proposes, because it could serve as a helpful study aid for the hon. Gentleman, who seems to misunderstand these matters.

I appreciate what the Minister said about introducing amendments to the clause and I look forward to hearing what she has to say about them at a later stage. It would be otiose to amend at this stage what is to be amended, so 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. 100, in clause 56, page 30, leave out lines 37 to 39 and insert

'a legally qualified prosecutor in the employ of the Director of Public Prosecutions, SOCA or the Revenue and Customs Prosecution Office.'.

Bill O'Brien (Labour, Normanton)

With this it will be convenient to discuss the following amendments: No. 212, in clause 56, page 30, line 37, leave out 'constable' and insert

'police officer who is not below the rank of superintendent.'.

No. 207, in clause 56, page 30, line 38, leave out paragraph (b).

No. 232, in clause 56, page 30, line 38, after 'SOCA', insert

'of the equivalent rank to a person to whom paragraph (a) above applies.'.

No. 233, in clause 56, page 30, line 39, at end insert

'of the equivalent rank to a person to whom paragraph (a) above applies.'.

David Heath (Liberal Democrat, Somerton and Frome)

Amendment No. 100 would simply ensure that the disclosure powers would be implemented by a prosecutor, who is a legally qualified person, and that on no occasion would it be left to an investigating officer—a police officer—to decide that it was possible and necessary to use them. That is an important distinction, and I think that it is inherent in what the Minister has said. I do not think that there is any intention of extending the powers to people who are not legally qualified prosecutors, but the Bill does not say so with sufficient precision. My view is shared by the Law Society, which has expressed concern and wants to remove any ambiguity.

My amendment is in line with what the Minister has said, but I should be delighted if she demonstrated that it is unnecessary because the Bill covers the point already.

Dominic Grieve (Conservative, Beaconsfield)

We have reached an important provision, on which I have tabled amendments, but I shall begin by commenting on the amendment tabled by the hon. Gentleman, who raises an important point. Who will hand out the notices? He has come up with an alternative proposal of specifying that it should be

''a legally qualified prosecutor in the employ of the Director of Public Prosecutions, SOCA or the Revenue and Customs Prosecution Office.''

There may be other approaches, but I feel particular concern when I note that two of the categories of people who can give out notices under subsection (3) denote, effectively, individuals with the rank of a police constable, and that another category is simply a member of staff of SOCA. It need not be a member of staff who also holds a constable's warrant, in the way that we heard on Tuesday. Anyone who carries out the task of handing out disclosure notices should be a constable. An officer of Revenue and Customs will, I think, have a constable's rank. However, a member of the staff of SOCA will not.

The question also arises of the appropriate police rank, which is why our amendments require the person concerned to be someone not below the rank of superintendent. The amendments are all probing amendments and they are intended to get a bit of a debate going.

To return for a moment to the points made by the hon. Member for Hemel Hempstead—I do not think that we can get away from this—there are always defences of necessity offered by the state, but the powers in question are of a kind that one would identify as the hallmarks of a fascist state. If we are going to pursue such a route because we think that it is necessary for the curbing of crime, we should keep that constantly at the back of our mind. We are breaching—admittedly not for the first time, but certainly more widely than ever before—the principle that people, and especially those who are not themselves under investigation, should not be required to do anything to co-operate with the state, and certainly not to answer questions as opposed to just producing documentation.

Safeguards must exist. If, as I understand from the Minister, all those people carrying out what I call the on-the-street operation will have constable's warrants, I do not understand why the staff member of SOCA need be identified separately at all. Presumably the staff member turning up would also be a constable and therefore under an obligation to exercise an independent judgment.

Caroline Flint (Labour, Don Valley)

As has been described by the hon. Member for Beaconsfield, the amendments reflect questions about how investigators and prosecutors will work together in issuing and using these notices. Those concerns have been raised by the Law Society and Justice, among others. Getting their respective roles right will be absolutely critical in ensuring that the information gained supports prosecutions and that the rights of those subject to notices are not infringed. All of us recognise that in tackling organised crime, investigators and prosecutors need to work closely together in making critical decisions at early stages of investigations, particularly, as has already been touched on, at the point of using the notices.

The powers of forced entry, search and interview under this chapter are more appropriate to be used by investigators than prosecutors. However, as I emphasised earlier, the prosecutors have a key role, first, in authorising the use of the powers and, secondly, in agreeing with the investigators how they will be used. We see the powers being used in partnership, with the prosecutor in the authorising role. Often the prosecutor will be involved in the execution of the powers, but that will not always be the case. We will ensure that prosecutors and investigators have proper training and clear guidance on how they should use these powers in practice.

The amendments would restrict who can exercise the functions of giving disclosure notices, as per clause 56, or of taking copies or extracts of specified documents and requiring a person who cannot produce a document to explain where they are, as per clause 57. It is important, if we are to be effective in using the powers of disclosure, that there is the ability to question individuals. We could be talking of vast quantities of documentation—not just paper documentation, but also that held on computer systems. We would, in all honesty, be creating something of a lame duck for ourselves if there was no opportunity or ability to ask some questions about documentation. I acknowledge that people did have concerns when we consulted via the White Paper on powers to tackle organised crime, but there was an understanding that if we are to have powers, those powers must be meaningful.

The functions under a clause 60 warrant include entering and searching premises using force if necessary, seizing documents or taking copies or extracts from them, and requiring an explanation of where documents are if they are not available. I suggest to the hon. Member for Somerton and Frome that carrying out these functions is very different from the prosecutor's role in authorising the notices themselves. Amendment No. 100 would restrict those who would carry out these functions to lawyers, but we believe, as I have tried to explain, that the practical execution of the functions should rest with investigators who are trained and experienced in this work, as we have set out in the Bill.

Amendments Nos. 212, 232 and 233 would set a minimum rank for investigators involved in carrying out the functions. We obviously agree these are sensitive and potentially intrusive new powers that will need to be authorised and exercised appropriately. The Bill provides for disclosure notices and application for warrants, as I have said, to be authorised by a Crown prosecutor or their equivalent, delegated by the relevant director or the Lord Advocate. In delegating those powers, the directors and Lord Advocate will want to ensure that the prosecutors are appropriately senior and experienced. The prosecutor will also specify which law enforcement staff can use the powers in the disclosure notice. It would be sufficient to ensure that use of the power is authorised by appropriately senior prosecutors, so there is no need to specify on the face of the Bill the minimum ranks of the investigators carrying out these orders. To reserve the practical application of this power to a superintendent would be far too restrictive and would not be effective enforcement.

James Clappison (Conservative, Hertsmere)

The Minister is talking about the rank of the person who authorises the exercising of the power. As she said, the person who actually exercises the power will be exercising some important functions, which she described, and will have some important powers. In clause 56(3), the appropriate person who is authorised to exercise those powers and who then carries out these functions is a staff member of SOCA. Will she say who and what the members of SOCA will be for these purposes?

Caroline Flint (Labour, Don Valley)

We had a huge discussion about that on Tuesday. In many respects, the hon. Gentleman makes a point that divided the Government and the Opposition. SOCA will be made up of several individuals with particular skills and experience, which will help us to defeat organised crime. Some members will have a police background, a Customs and Excise background and so on. As we discussed on Tuesday, the Government believe that SOCA staff, where appropriate, should be designated with powers to carry out their functions. That is why we discussed giving the powers of the constable to other individuals, after accredited training, who may not have come from a policing background. The Government and the Opposition clearly disagree on that.

Any staff member of SOCA involved in executing the disclosure notices will be given the necessary training and any staff member exercising search powers will be designated. As I said on Tuesday, we will not shoot ourselves in the foot by sending out SOCA staff to carry out these functions if their ability to do so could be challenged. That is why training and designation are so important.

That point links to amendment No. 2007—I mean 207.

Dominic Grieve (Conservative, Beaconsfield)

Just you wait.

Caroline Flint (Labour, Don Valley)

It is going to be a long, long day.

In some ways, amendment No. 207 amplifies our debate on Tuesday and the differences between the Government and Conservative Members. The Government do not believe that SOCA will be a police organisation staffed either by police officers with the powers of a constable or by immigration and Customs officers. If that were the case, the hon. Member for Somerton and Frome would be right that we should leave out paragraph (b), as it would no longer serve a purpose, and we would therefore support the amendment.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful to the Minister for setting out her position, which I shall consider carefully. In parenthesis, in response to the Conservative amendments and as I said on Tuesday, it would be helpful to have an early indication of how SOCA will be organised. Will it have a rank structure, and if so, in what form? It must have a rank structure. It is not possible to operate a body of that size without a chain of command. Whether or not it is a policing organisation, one would assume that, like its parent bodies, it will have levels of responsibility other than the director general and the directors, who are the only known ranks at this stage. I would be grateful if the Minister gave the Committee her Department's thoughts on the matter at some point, because it will impinge on how enactment will work.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 208, in clause 56, page 30, line 43, leave out paragraph (a).

Bill O'Brien (Labour, Normanton)

With this it will be convenient to discuss the following: Amendment No. 209, in clause 56, page 30, line 45, leave out paragraph (b).

Amendment No. 210, in clause 57, page 31, line 19, leave out from 'notice' to end of line 21.

Amendment No. 211, in clause 58, page 32, line 17, at end insert—

'(5)(A) A person may not be required under section 56 to produce any document or information provided to him under a duty of confidentiality in respect of it.'.

Amendment No. 215, in clause 60, page 33, line 37, leave out from 'to' to 'state' in line 38.

New clause 16—Legal privilege—

'(1) Provision may be made by regulation for the resolution of disputes as to whether a document, or part of a document, is an item subject to legal privilege.

(2) The regulations may, in particular, make provision as to—

(a) the custody of the document whilst its status is being decided,

(b) the appointment of an independent, legally qualified person to decide the matter,

(c) the procedure to be followed, and

(d) the costs of the proceedings.'.

Dominic Grieve (Conservative, Beaconsfield)

I apologise, Mr. O'Brien, for not being able to hear the Minister's reply to the amendments or to participate further in the debate once I have spoken. However, as I tabled most of the amendments, I will speak to them.

The Bill gives the power not only to seize documents or to ask where they might be, but to ask questions of a third party who is not under investigation in respect of the content of those documents. Power exists in company law and in respect of serious fraud to ask a third party to provide explanations. However, when the power in this part of the Bill was first proposed, the justification for it, which I heard on the radio, was that it was inconvenient to have to go to court to obtain a production order in relation to documents and that what was desired was the ability to attend the home of a third party and to secure documentation without going through the court procedure. I was comfortable with that concept, as it seemed that what was proposed made sense. On examining the detail, however, it became clear that a much wider power was proposed, although the explanation on the radio was probably not made wilfully. It is the power not only to say, ''Have you got any of Bloggs's documents in your house,'' or to seize them or to say, ''Can you show me where they are?'', but to say, ''Tell me what these things are all about from what you know of them?''.

I said earlier, not entirely tongue in cheek, that these are fascist provisions, the provisions of a totalitarian state. If they are to be implemented, we need a good and sufficient reason for doing so. As the hon. Member for Somerton and Frome said earlier, which I echoed, SOCA's remit is potentially extremely wide.

These are probing amendments on a matter of principle; I hope that the Minister will take the opportunity to discuss them, and I will read Hansard and think about what is said. I hope that she will explain why the power has to be so widely drawn if what is desired is the ability to seize documentation and materials speedily. The measure goes much further than that, and it could be argued that if the Minister wishes to include the power to ask questions of a third party about the material, it should be put in a more restricted setting than that of the seizure of documents—there could be a two-tier system. I will return to the matter on Report if I am not satisfied with the Minister's answers.

Tony McWalter (Labour/Co-operative, Hemel Hempstead)

Will the hon. Gentleman confirm that he is not committing the logical fallacy of affirming a consequence by saying that a fascist state has a police force, Britain has a police force, therefore Britain is a fascist state? The hon. Gentleman's argument sounds like that.

Dominic Grieve (Conservative, Beaconsfield)

There are basic principles of law that have existed in this country for a long time; exceptions are sometimes made—for example, a person has a privilege against self-incrimination, and a person who is not under investigation has no duty or responsibility to answer questions asked by a person in authority, except in a number of set provisions, such as when filling in a tax return. It is therefore unusual to demand of someone who is not under investigation—it is worth bearing in mind that some pretty draconian penalties are provided in the Bill—that unless they tell everything they know about someone else or his business affairs, they will go to prison for a long time. That is the stick that is being waved at them. In a free society, we have consistently avoided doing that, even though I accept that those exercising power in the state may find it convenient to have such a power. The Minister tells us that that power will not be abused, and I know that she speaks with complete and transparent honesty when she expresses that view. However, it is not a light matter that we will implement in this clause.

This morning, I heard on the radio about Prince Harry getting into trouble for wearing fancy dress. It made me laugh slightly that a huge amount of noise was made about that, when it seemed to me to be, at worst, a matter of bad taste for which an apology should be readily accepted, yet there has been very little comment about the fact that in a Committee such as this we are implementing exactly the sorts of powers that that sort of state would happily have taken to itself.

David Cairns (Labour, Greenock and Inverclyde)

Oh, for heaven's sake!

Dominic Grieve (Conservative, Beaconsfield)

No, no, no.

David Cairns (Labour, Greenock and Inverclyde)

Will the hon. Gentleman give way?

Dominic Grieve (Conservative, Beaconsfield)

No.

David Cairns (Labour, Greenock and Inverclyde)

Outrageous.

Dominic Grieve (Conservative, Beaconsfield)

Will the hon. Gentleman keep quiet for a moment?

I shall now turn to new clause 16, which deals with the question of privileged documents and is probing in its intent. When I read the Bill, it was not clear to me how disputes in respect of privileged documents would be resolved. The proposed new clause therefore puts forward a way in which that might be done. I will be grateful to hear from the Minister whether that mechanism might be helpful, or whether she can reassure the Committee that there will be a tried and tested procedure that can be adopted to resolve such issues. I am sure that other members of the Committee will agree that that is important. The Government have been consistent in the past in protecting privileged documents and communications, and there should therefore be no difficulty over that matter. I hope that the Minister can provide some reassurance on that point.

I apologise to the Committee that the requirements of going to a funeral mean that I cannot stay. I am sorry if some members of the Committee felt upset at my comments, but we should not blindly take powers because it seems convenient to do so, without constantly remembering why it is that over the past 150 years Parliament has consistently prevented the Government from getting that type of power. It is the fact that we have done that which makes us the sort of country, with the sort of freedoms, in which we live today. If we just get rid of those freedoms at the stroke of a pen without carefully considering the implications, we are in danger of creating a very different kind of society.

Caroline Flint (Labour, Don Valley)

I am sorry that the hon. Gentleman has to leave but I would like to say something as he goes. He made a number of comments about our proposals being fascist. I remind him that the requirement on a person subject to a disclosure notice to answer questions mirrors provision in section 2 of the Criminal Justice Act 1987, which was introduced by a Conservative Government. We must be careful about using the sort of language he used, because it does not add much to discussion of a serious subject.

Vera Baird (Labour, Redcar)

My hon. Friend will be aware that neither the Law Society or the Bar Council nor the Justice and Liberty organisations take anything like the view expressed by the hon. Member for Beaconsfield. All those bodies support the introduction of the powers, although they have some reservations.

Caroline Flint (Labour, Don Valley)

I thank my hon. and learned Friend. Scrutiny of Bills is important, and raising tension and emotions through scaremongering is not helpful to a sensible review of legislation.

Much of organised crime relies on business transactions and facilitators to manage its finances and provide transport and storage. Some people and organisations involved on the periphery of such transactions are entirely legitimate or have only a minor involvement in the group's criminality, but unfortunately—or fortunately for law enforcement—have information about the group's operation, which we would try to access. There is seldom enough evidence to charge those individuals, nor is there any incentive for them to share information with the police. Although those who come forward with information useful to the prosecution can be compelled to give evidence in court, they are under no obligation to answer questions.

The Serious Fraud Office and Assets Recovery Agency rely on their use of disclosure notices to require individuals to produce documents and answer questions in their investigations. The amendments would prevent prosecutors and investigators from asking questions relevant to the investigation and to the specified documents. However, a limited ability to ask questions would be an important addition for investigating organised crime.

Powers already exist to seize and require the production of documents. This Bill is intended to provide added value and deal with the fact that existing powers are hampering investigations and the legitimate pursuit of criminals. The notices would add a limited ability to ask questions of the person who has the information. In many investigations there is a reasonable expectation that there is relevant evidence, but it will not necessarily be clear which documents contain that information or what those documents mean. The Serious Fraud Office finds such powers invaluable in its investigations and has been able to use them fairly. We are providing the same safeguards against self-incrimination to protect those questioned. Many organised crime investigations involve similarly complex transactions, and that is why the power should be extended beyond serious fraud to all serious crime.

David Heath (Liberal Democrat, Somerton and Frome)

One thing the Minister has not mentioned, which is important to our understanding of the need for the provisions, is that worse than simply not wanting to co-operate with the police, the person involved will often be intimidated by the organisation about which he holds information. It is therefore necessary to have a counterbalance to that.

Caroline Flint (Labour, Don Valley)

I absolutely agree, and that is why in other areas of the Bill we have addressed issues of protection, not only for witnesses in trials, but for those disclosing information who may be subject to coercion and intimidation.

Amendment No. 211 would prevent any document or information from being disclosed when there is any duty of confidentiality. There are tried and tested definitions of what confidential material should not be available to investigators, and we have excluded that material as outlined in clause 58, which includes confidential personal business records and confidential legal, medical and journalistic material. The amendments would exclude any potentially confidential material and drastically limit the effectiveness of the notices. The proposed new clause rightly raises the need for a process to separate privileged material from material that can legitimately be seized, and could apply to materials seized under any power.

Clause 60(9) provides that professionally privileged material cannot legally be seized under a clause 60 warrant. Such documents can be taken only by virtue of the powers in part 2 of the Criminal Justice and Police Act 2001, which apply to the disclosure notices in part 2 of this Bill as well as other search and seizure provisions. Any such seizure would be subject to the same safeguards as seizures under other powers. For instance, the Act and associated codes of practice provide for the material to be seized and stored securely by the investigators separately from other material until it can be examined. They provide for anyone with a reasonable interest in the material to be present when it is examined to determine whether it is privileged. They also provide for any party with an interest in the material to apply to a judge for its return if they believe that it is being retained unlawfully.

We believe—as I hope the Committee will—that the provisions already provide an adequate framework to ensure workable, but effective safeguards for separating such material, and I hope that hon. Members will not press the amendments or the new clause.

David Heath (Liberal Democrat, Somerton and Frome)

The earlier exchange was unfortunate because it polarised the Committee on a serious issue in a way that perhaps did not contribute to our best understanding of it. There is, of course, a very serious issue in granting such extraordinary powers to the state, and the hon. Member for Beaconsfield was right to question that and to put the Committee on guard against any arbitrary extension of powers. Equally, however, we must clearly understand the context in which those powers will be used. As the Minister rightly said, they form part of previous legislation on serious fraud, which was proposed by her party and introduced by the previous Government.

My main priority in this part of the Bill is to get the balance right and establish the right context for the use of these extraordinary powers. That is why the earlier discussion was so important to me. Unless we clearly define the offences that fall under these powers and the safeguards on their use, we risk giving the state a quite extraordinary power to intrude on personal liberties. I think that most members of the Committee would not want to extend the powers in that way.

David Cairns (Labour, Greenock and Inverclyde)

The hon. Gentleman is making his case in a serious and measured way. Earlier, he made a jocular reference to the Stasi and my hon. Friend the Member for Hemel Hempstead, and we all laughed, having understood it for the joke that it was intended to be. However, does he not understand the anger that Labour Members feel when we hear the sort of casual references to the fascist state and fascism that the hon. Member for Beaconsfield bandied about, particularly as we approach holocaust memorial day? Such allegations cannot be casually bandied about, no matter what reservations people have about the provisions. Words such as fascism and fascist state should not be employed in this context. Will the hon. Member for Somerton and Frome therefore join my colleagues in deprecating such remarks?

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful to the hon. Gentleman. I have given him the opportunity to express himself. As I said, the earlier exchange was unfortunate, but let us move on and deal with matters in the right context.

David Cairns (Labour, Greenock and Inverclyde)

Wishy-washy Liberal.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. Gentleman can chunter as much as likes from a sedentary position, but I will express myself in the way that I choose, not the way that he chooses.

Many of us would be more at ease about the clause if the limitations on the use of the powers were expressed more explicitly. The Minister has given us a lot of assurances on this and previous amendments, but they have often been assertions rather than limitations in law. That is the difficulty that many of us have with the proposals.

Geoffrey Clifton-Brown (Conservative, Cotswold)

I thank the hon. Gentleman for calming the tone of the discussion. Is not the issue that free and libertarian states should never take any power unless it is necessary and expedient to do so? Is not there a danger that it can take one power, then another and another until, all of a sudden, the balance has shifted considerably? That is precisely what we are considering here—whether the balance is correct.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. Gentleman is right to draw attention to the incremental accretion of powers, of which Parliament, in particular, should be very wary. He is also right to say that the balance that must be struck is crucial to the equation.

Tony McWalter (Labour/Co-operative, Hemel Hempstead)

I am grateful to the hon. Gentleman for the way in which he has calmed the debate, after the hotter tones heard earlier. The debate might have a beneficial effect by ensuring that the operational directives given to members of the Serious Organised Crime Agency will make it clear when people are not under investigation and when they are. It might be of some use in that context.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful to the hon. Gentleman for that comment. My concern, to be absolutely open about it, is that codes of conduct are ephemeral and capable of change. Acts of Parliament are capable of change—these days, we sometimes revise Acts of Parliament before they have even been implemented—but at least Parliament acts as a safeguard. The same is not true of the way in which the statutes that we pass are operated by the agents of the state. That is why, when giving powers, we must be so careful to ensure that they are circumscribed to ensure the safety and liberty of the citizens of this country. That is a serious measure, which should not require any form of badinage in the Committee, but does require our serious attention. I hope that we are now focused on the provisions before us.

Jonathan Djanogly (Conservative, Huntingdon)

We keep hearing the same words—balance and safeguards—from the hon. Gentleman and from Conservative members of the Committee. Genuine concerns have been expressed that those words are not applicable to the clause as it stands. The hon. Member for Hemel Hempstead mentioned that the provision applies to people under investigation, but the whole point of disclosure notices is that their remit is much wider than those under investigation. In fact, my personal concerns are about those who are not directly under investigation—the ancillary companies and individuals who might be sent a notice out of the blue. They deserve protection as much, if not more so, than the person being investigated.

The points that have been made are cumulative. There is no grading of the importance of the crime involved: in practice, anyone is subject to the provisions, even though a casual observer may have thought that the Bill was about serious organised crime. We have noted no discernment regarding the rank of SOCA members of staff who can operate many of the provisions. I therefore concur with many of the points made by my hon. Friend the Member for Beaconsfield.

Caroline Flint (Labour, Don Valley)

May I take it that the hon. Gentleman disagrees with Liberty, a group that has on many occasions disagreed with Government policy on human rights? Liberty says:

''These powers are already enjoyed by the Serious Fraud Office and will now be extended to the police, SOCA, and Customs and Excise. Liberty accepts that there is scope for compulsory questioning and production powers to be used. It is common practice in company law, and when dealing with regulatory offences, to require responses to questioning.''

Jonathan Djanogly (Conservative, Huntingdon)

I make two points in response to the Minister. The first, which I addressed in my initial remarks today, is that the provisions under the Enterprise Act 2002 relating to the SFO and those under the Companies Act 1985 relating to DTI investigations have to be put in a different context from the reality in which those investigations are put into practice.

Secondly, I was making a specific point about the rank of the individuals who can operate the provisions. Clause 56(3) refers to

''a member of the staff of SOCA'',

not to a member of staff of any rank.

Vera Baird (Labour, Redcar)

The explanatory notes state—correctly, I believe—that the Assets Recovery Agency

''has the power to compel individuals to co-operate with investigations by producing documents and answering questions.''

What rank do the ARA people have to have?

Jonathan Djanogly (Conservative, Huntingdon)

I do not know. Perhaps the Minister can answer. I am looking at the Bill before us and the gap that I perceive in its provisions.

Caroline Flint (Labour, Don Valley)

Does the hon. Gentleman also disagree with Liberty on this issue? Liberty states:

''One of the features of SOCA is the flexible nature of its staff's work. Chapter 2 (in particular clauses 38–44) allows for SOCA staff to have the full powers of police constables, immigration officers, and customs and excise officers designated upon them by the Director General of SOCA. This is understandable, as SOCA will cover a variety of areas currently split between separate agencies. It is important that SOCA staff, when designated these roles, are accountable in the same way as those who normally carry out the function.''

We emphasised that and resisted amendments in that respect on Tuesday. Surely what is important is that a member of SOCA who is involved in carrying out the functions should ensure that he has the designated powers that are appropriate and is therefore accountable in the same way as someone who may be called a constable? The powers, not the person's title, are what is important.

Jonathan Djanogly (Conservative, Huntingdon)

First, we discussed this on Tuesday. Secondly, I do not regard myself as a representative of Liberty. Thirdly, we did not discuss disclosure notices and the person who is an ''appropriate person'' for the purposes of subsection (3). I think that I have made our position quite clear. Subsection (4)(b) is very broad, referring to the requirement to

''provide information with respect to any such matter as is specified in the notice''.

Presumably, it does not even have to relate to the investigation, which is at least specified in paragraph (a).

Amendment No. 211 relates to duties of confidentiality. We tabled the amendment because we have serious concerns that non-directly connected parties—third parties—who receive notices and who are asked to produce documents or speak to them may have contractual duties of confidentiality in respect of the documents in question. That requirement might be quite fair in relation to the accused, but it could have a significant impact on the business of a third party. Our argument is not that in no circumstances should the documents have to be produced, but that, as at present, the question should have to be put to a court to decide.

Caroline Flint (Labour, Don Valley)

I am sorry to take up the Committee's time, but it is important to correct misinformation. The hon. Gentleman tried to make a point about subsection (4)(b). The phrase ''such matter'' in that subsection refers back to

''matter relevant to the investigation''

in paragraph (a). They stand together.

Jonathan Djanogly (Conservative, Huntingdon)

If so, I suggest that the drafting does not work. Paragraph (a) refers specifically to matter that is ''relevant to the investigation'' and paragraph (b) is not clear. It reads:

''provide information with respect to any such matter as is specified in the notice''.

It does not say that the matter is relevant to the investigation. It may be a minor drafting point. If the Government were prepared to put ''relevant to the investigation in subsection 4(b)'', I would be much happier.

Returning to amendment No. 211, I share the concerns that were expressed by my hon. Friend the Member for Beaconsfield. I shall end there, on the basis that my hon. Friend the Member for Sutton Coldfield (Mr. Mitchell) wants to speak to new clause 16.

Andrew Mitchell (Conservative, Sutton Coldfield)

This has been a most interesting and sometimes enlightening debate. As the Minister said, there is a substantial difference across the Committee, which was well ventilated and understood on Tuesday. The Opposition are very concerned about the way in which powers are to be given to SOCA officials willy-nilly and there is no doubt that we will come back to the issue on Report and in the other place. There is also a problem with the ranking structure, as my hon. Friend the Member for Huntingdon pointed out. There is nothing between the Government and ourselves on that—the Minister said on Tuesday that it was not possible to clarify the matter at this stage, but that it would be in the future. We shall return to that point, too.

I wish to speak briefly to new clause 16. I sensed that the Minister had some sympathy with our argument. The purpose of the new clause is to provide a means for resolving disputes about whether a specified document is subject to privilege. At present, as she conceded, there is no procedure for dealing with the inevitable occasions on which such disputes arise. The clause is modelled on schedule 1AA(6) of the Taxes Management Act 1970. The amendment is clearly sensible. The right not to disclose legally privileged documents and so on is correctly included in the Bill—in clause 58—yet there is no mechanism for dispute resolution. Without doubt, disputes will arise regarding what documents are covered by the exemption. It must be right, therefore, for there to be a statutory device whereby disputes as to what information is legally privileged can be resolved. I hope that the Committee agrees.

Finally, the hon. and learned Member for Redcar (Vera Baird) made a good point about the Criminal Justice Act 1987. I think that, of the members of this Committee, only you, Mr. O'Brien, the Government Whip and I were MPs at the time—I voted for the Bill and the Government Whip voted against it. The hon. and learned Lady's point was fair, and my hon. Friend the Member for Beaconsfield, who made such pertinent comments, will, no doubt, read the Hansard report and decide whether he wishes to re-raise the matters later.

Vera Baird (Labour, Redcar)

I did not talk about the powers of the Serious Fraud Office. The hon. Gentleman is right to say that I am far too young to have been in Parliament when those provisions were enacted. What I did mention was the Assets Recovery Agency, which was set up under the Proceeds of Crime Act 2002, and came into force in 2003. I have to admit that I would not have remembered this if it had not appeared in the explanatory notes, but that agency does have the same powers. It is not even a police agency, so if there are no problems with the application of this kind of regime in another agency that is not confined to police, perhaps some of the hon. Gentleman's concerns can be assuaged by looking at the work of ARA.

Andrew Mitchell (Conservative, Sutton Coldfield)

I am grateful to the hon. and learned Lady for clarifying the point, and I shall reflect on what she has said when I read it in Hansard. Of course, I realise that she, the Minister and the other ladies on this Committee, are far too young to remember the incidents to which I referred, but which the Government Whip and I are old enough to remember.

There is an important point of which the Committee is seized. We are dealing with substantially increased powers, and all of us wish to take care that the intrusion of the state into our lives and our rights should be carefully thought through before we allow the accretion of such powers. All of us are striving to get the balance right. As the hon. Member for Somerton and Frome made clear in his final remarks, that is what the debate is about.

As I did not move the amendment, I cannot withdraw it, but the Opposition do not seek to press it.

Amendment negatived.

Clause 56 ordered to stand part of the Bill.

Clauses 57 and 58 ordered to stand part of the Bill.

Clause 59 - Restrictions on use of statements

Andrew Mitchell (Conservative, Sutton Coldfield)

I beg to move amendment No. 213, in clause 59, page 32, line 37, leave out 'criminal'.

The amendment, which was tabled by my hon. Friend the Member for Beaconsfield, who as the Committee knows has to be at a memorial service today, deals with a small but important point. I seek clarification of why ''criminal'' is included but the gamut of civil cases is not. If she can make that clear, I will happily withdraw the amendment.

Caroline Flint (Labour, Don Valley)

The amendment would prevent a statement made under a disclosure notice being used against the person who made it in civil proceedings. Such statements will be made only in relation to documents or information relating to serious criminal offences and so will not routinely include information of relevance to civil proceedings.

The clause ensures that self-incriminatory statements made under the powers in chapter 1 cannot be used in criminal proceedings. That replicates the current safeguards on Serious Fraud Office powers, which have been thoroughly tested by the courts. The provisions are also consistent with the use of disclosure notices in asset recovery, where there is no bar on self-incriminatory statements being used in civil proceedings.

It is open to a court to decide not to admit a specific statement if there is no statutory prohibition on its admissibility, but we do not believe that it is necessary or desirable to provide an absolute prohibition on the use of such statements in civil proceedings. An example involving the SFO would be where it passes information to the Financial Services Authority to look at in civil proceedings on financial irregularities. I hope that that explains the situation and ask that the amendment be withdrawn.

Andrew Mitchell (Conservative, Sutton Coldfield)

I am most grateful to the Minister for her explanation. As far as I understand matters, I think that she has answered the point, but no doubt my hon. Friend the Member for Beaconsfield, with his legal training, will wish to examine her words. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

Vera Baird (Labour, Redcar)

I have a short query, which I hope I am raising appropriately in connection with clause 59, which deals with excluding the fruit of any disclosure notice from criminal proceedings only, not from civil proceedings.

What the Minister said is absolutely right, but I have a concern. How does someone challenge a notice that they do not believe they should have been served with? I have not seen anything in the Bill to set up a procedure, so my point is wider than the one that the hon. Member for Sutton Coldfield made about challenging issues of privilege. If I do not believe that I possess documents that can be relevant to an investigation into Bloggs—perhaps because I have never met Bloggs or do not know who he is—how do I get such powers lifted? Do I have to go to court via a civil route, which would probably be a long route and could certainly obstruct criminal proceedings or an investigation?

I hope that the Minister can help, although she might be unable to do so straight away—I appreciate that my question might be a bolt from the blue. It is important that people know what they have to do to get out from under such draconian powers if, by any mischance, they are inappropriately applied.

Caroline Flint (Labour, Don Valley)

My hon. and learned Friend makes an important point. We shall apply the same procedures, as I understand it, as the SFO. I ask her to bear with me while I obtain further details for her.

Vera Baird (Labour, Redcar)

My only concern was that if one does not accept the amendment tabled by the hon. Member for Beaconsfield and moved by the hon. Member for Sutton Coldfield—if the individual has to challenge a notice through civil proceedings—one wants all the material seized to be admissible in civil proceedings.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful to the hon. and learned Lady for raising that interesting point. An alternative question is whether information derived from the improper use of a disclosure notice would be admissible in either criminal or civil proceedings, despite the fact that it had been improperly obtained?

Vera Baird (Labour, Redcar)

That is another interesting point, which the Minister will have to consider too. It is not one that had occurred to me, but if I took some action after having received a disclosure notice and the court, or whoever, decided that it had been wrongly issued, the material in the hands of the police under the notice—assuming that they had seized it all—would not have been obtained under a disclosure notice and would therefore not be excluded from admissibility. They might be able to use it against me. That is a thorny problem.

Geoffrey Clifton-Brown (Conservative, Cotswold)

Is not the position as follows? If a member of SOCA goes to a person and says, ''I want these documents,'' and they say, ''No,'' clause 60 comes into play, whereby the agency applies to a justice of the peace to obtain a warrant to obtain the documents. The ultimate arbiter of such matters, if there is a dispute, will therefore be the justice of the peace.

Vera Baird (Labour, Redcar)

Not necessarily, because a person faced with a notice might want to consider their position and argue the matter at that point. It is fairly invidious if the only way that they can deal with it is by being dragged to court under threat of having the bailiffs hammering on the door or the police breaking it down. I hope that there is a way of pre-empting an improper notice at an earlier stage than that. I take the hon. Gentleman's point, which is a good one, but I hope that that is not the only solution.

Geoffrey Clifton-Brown (Conservative, Cotswold)

In the present circumstances, presumably, the person would receive a caution from the police officer wanting to seize documents under other powers granted by other legislation, saying that if they do not produce the documents, those further powers could be used by going to court. Presumably there will be a similar caution in the present case: if the person does not comply with a disclosure notice, they may be required to do so by a justice of the peace.

Vera Baird (Labour, Redcar)

It is interesting. What about a situation where SOCA already has documents seized under a disclosure notice and believes that I—not necessarily the person from whom they have been seized, can explain them—so SOCA serves a disclosure notice on me, not demanding papers, so the enforcement provisions, including breaking down my door to obtain them, do not apply, but demanding that I give an explanation of the documents. If that disclosure notice is wrongly served, I do not have a remedy for it under the Bill. I am sure that there is a remedy to be given somewhere. The hon. Gentleman can see that the matter is quite complicated.

Caroline Flint (Labour, Don Valley)

As I have said, I do not necessarily think that our position on the amendment is affected. We are resisting it, but I shall ensure that we give some more expansive responses to some of the issues and examples that my hon. and learned Friend raises.

Question put and agreed to.

Clause 59 ordered to stand part of the Bill.

Clause 60 - Power to enter and seize documents

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 173, in clause 60, page 33, line 44, at end insert

'in order to take possession of, preserve or prevent interference with the documents specified.'.

We now deal with the power to enter and seize documents. Clause 60(4) states:

''A person executing a warrant under this section may take other persons with him, if it appears to him to be necessary to do so.''

That is a permissive power. Presumably, not every person who might be involved in taking possession of documents is necessarily a constable—in fact, under the arrangements for SOCA, it is quite likely that such a person will not be a constable. I fully understand that it will sometimes be necessary to have other persons present in order to obtain the necessary information. One can easily envisage circumstances in which the information is held in electronic form, for instance, on a computer system, so that an expert or someone with greater expertise than the constable executing the warrant might have will be needed to access the information on the system. It is perfectly sensible to make it explicit that that is allowable under the law.

There is an oddity in subsection (10)(c), which provides that subsection (4) does not have effect in Scotland. My understanding is there is case law in Scotland covering exactly the circumstances that I have outlined: someone was taken as an accompanying expert, which raised a question in law in Scotland. I should be grateful if the Minister explained the position under Scottish law and why it is either not necessary or not advisable to give express permission for someone to accompany a person executing a warrant in Scotland.

My purpose in tabling the amendment is to make it explicit that the people who accompany the person executing the warrant must be there for the express purpose of ensuring that the information is obtained. I say that because it has become a regrettable practice in some areas of the police service for officers executing warrants to be, on occasion, accompanied by persons who are not in the police service, but who are there to record what happens either as entertainment or for the news. I find that reprehensible; it is completely inappropriate for members of the media to be advised in advance of the execution of a warrant and the entering of a person's premises so that they are there to film the door being broken down and the entry of the police. I have raised it in the context of other criminal legislation, and we have received assurances from senior police officers and others that the practice is discouraged. However, it happens.

John Mann (Labour, Bassetlaw)

I fundamentally disagree. Does the hon. Gentleman accept that the majority of the general public are keen to see such media coverage, such as the breaking down of drug dealers' doors, to build confidence in the process and in the idea that law enforcement agencies are doing their job properly?

David Heath (Liberal Democrat, Somerton and Frome)

In that case, we must disagree. In the situation covered by the subsection, we are not dealing with the criminal; the event is not ''the bust''. We are dealing with a person who may or may not have information that relates to a person who has information. That person and their home, with officers intruding on it, should not, in my book, be shown on television for public entertainment. I am sorry to be po-faced, but I fundamentally disagree with the hon. Gentleman about whether a media presence is appropriate. The media intrude into society in all sorts of ways, but this is one area from which they should stay well away.

Vera Baird (Labour, Redcar)

It is a brief point, but there is no suggestion that the recipient of a disclosure notice need have any connection with criminality of any kind. It could be a wholly innocent person, who happened to have documents that the police thought might incriminate someone.

David Heath (Liberal Democrat, Somerton and Frome)

Precisely so. I am grateful to the hon. and learned Lady for that point, because the ramifications of such exposure for that person's life could be extraordinary. A company could be destroyed. A person's privacy could be destroyed. They could attract the attention of the very criminals who are sought by the enforcement agency. That is a serious point, although I do not want to overstate it, because I do not believe that it will be SOCA's policy for its representatives to be trailed by television cameras wherever they go. However, it is perfectly reasonable to say that the people who may accompany a person executing a warrant should be there for the purposes of executing the warrant and not for any other, extraneous purposes.

Andrew Mitchell (Conservative, Sutton Coldfield)

The hon. Gentleman was extraordinarily restrained in his response to the intervention by the hon. Member for Bassetlaw (John Mann). I am also amazed that the hon. Member for Greenock and Inverclyde (David Cairns) did not immediately get to his feet, given his heat earlier today when my hon. Friend the Member for Beaconsfield was speaking. The hon. Member for Somerton and Frome is right. The intervention by the hon. Member for Bassetlaw related to circumstances prior to any conviction. The fundamental point is that in this country a person is innocent until proved guilty. I am amazed at that intervention. I strongly agree with what the hon. Member for Somerton and Frome is saying: media grandstanding when the police are going about their business is wrong. I hope that, perhaps in another context, we might stiffen the penalties for those who cause such incidents to take place.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful for the hon. Gentleman's support, although I have to say that nothing amazes me any more when it comes to the comments that are sometimes made in Committee, because there seem to be some extraordinary notions in modern society of what is appropriate behaviour.

Jonathan Djanogly (Conservative, Huntingdon)

During the 1980s, there was a high-profile series of situations, mainly involving the SFO, in which people were filmed during early morning raids. I thought that that practice was considered to be totally counter-productive and that we had moved on from it.

David Heath (Liberal Democrat, Somerton and Frome)

I think we have and that, in fact, that is not normal practice nowadays. I hope that it will not be in future. That is why I do not think that the amendment will have any large effect in practice; it is not the behaviour that I would expect of SOCA. There is always a temptation, however. Let us remind ourselves of the extraordinary situation exposed by Sir Stephen Lander. One of his targets or performance indicators will be the column inches generated in the press, so there will be quite a temptation for SOCA to have a few high-profile successes early in its life. Officers will be tempted to take extraordinary measures to ensure that everyone knows that they are around, working hard and doing the job that we want them to do, so we must exercise some caution.

Geoffrey Clifton-Brown (Conservative, Cotswold)

I wish to place one other point on the record, which explains why I strongly disagree with the intervention by the hon. Member for Bassetlaw, whom I generally regard as sound. If warrants are issued in front of the media, there will be a severe danger of trial by media. We must guard against that constantly, or it will totally undermine our criminal justice system.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful to the hon. Gentleman. Some would say that our criminal justice system has already been undermined in that way, but under the Bassetlaw legal system there is no such concern. I find that surprising, but never mind.

I have expressed sufficient arguments to make clear my reasons for tabling the amendment. First, I would be grateful if the Minister gave assurances on the operation of SOCA; I am sure that she will. Secondly, if she believes that the amendment is unnecessary, will she say why she believes that? Thirdly, will she tell us about the position in Scots law and why the provision is not necessary in the arrangements pertaining to Scotland, but necessary for England and Wales?

Caroline Flint (Labour, Don Valley)

As has been outlined, amendment No. 173 would allow the appropriate person to take other persons with him only when it was necessary to do so

''in order to take possession of, preserve or prevent interference with the documents specified.''

Although I have some sympathy with the issues raised by the hon. Gentleman, we are concerned that the amendment might provide too narrow a definition for practical application.

In specifying some of the purposes for which other people could be present, we would effectively exclude their being present for other purposes. Our view is that there are a number of legitimate reasons why investigators may need other persons present, but they would be excluded under the amendment. In particular, it could prevent the prosecutor being present to advise. It could also prevent others from being present to secure access to the building or to ensure the safety of those doing the search and those being searched.

Comments have been made about the media. I have some sympathy with my hon. Friend the Member for Bassetlaw. I recognise that, in certain circumstances, it is important that the public are made aware through the media of the action that the police are taking against criminals in the local community. For instance, in Doncaster—I am sure that it is also the case in Bassetlaw—when the police have made drug raids, they have leafleted households to let them know what was going on, and it has also been reported in the papers. That is important. In certain circumstances, however, it is not appropriate to use the media, and there are questions about disclosure when trying to seek information linked to an investigation into organised crime, especially if those issuing the disclosure notices have no awareness of how their involvement might be linked.

As with other matters dealt with in the Bill, particularly the discussions to come this afternoon on money laundering, even without the disclosure powers, we will need the active support of lawyers, accountants and financial institutions to assist us in our endeavour to tackle money laundering and so on. Later today, on some of the measures that we have been considering, and based on advice from people working in that sector, we shall discuss how we can make it better for people to participate without it being too onerous.

As for the media, I suggest that the clause already makes adequate provision. When a warrant is served under subsection (4), it has to be necessary, and by no stretch of the imagination could one say that the media are ''necessary'' to the issuing of a warrant.

Devolution obviously means that Scotland operates differently from England and Wales, and, for that matter, Northern Ireland. As I understand it—I am happy to write in more detail if my explanation is not as comprehensive as the hon. Gentleman might wish—in Scotland, express authorisation would have to be given in a search warrant for specific persons to accompany police officers on a search. The sheriff has the power to authorise such appropriate persons to attend a search. We do not think it necessary to make specific provision for that. It is one of those areas where we have our separate ways; what we might think appropriate for England and Wales is done differently in Scotland.

I hope that I have explained our views. The appropriate person is authorised only when necessary. We do not need to set out an exhaustive list of the purposes for which it may be necessary. For that reason, we feel that the clause is adequate to protect the person from whom the disclosure is sought or the warrant executed; it will protect them from a whole baggage of people coming along without justification.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful for the Minister's response, but I gently chide her on one point. Scots law is not a matter of devolution; it was never part of the jurisdiction of England and Wales. It is a separate entity. It would help if the Minister were to provide me with further details, so that I know exactly what is the situation. However, as I said, I understand that this was challenged in court and that there was case law, from which there is a requirement for the sheriff to stipulate who may accompany a person executing a warrant. That is not necessary in English and Welsh law.

It is difficult to see how my amendment narrows unnecessarily the scope of those who may be sent to execute a warrant, because if they are necessary to do so, the doing so is what I have added. Of course it is possible to argue the other way and say that the words are unnecessary because the point is already covered.

I have my doubts, but the Minister's comments have helped to set out the Government's position. Again, the matter could usefully be addressed in the guidance to prosecutors and to the officers of SOCA. Perhaps she will consider doing so when the time comes. She has indicated assent, for which I am grateful. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Jonathan Djanogly (Conservative, Huntingdon)

I beg to move amendment No. 214, in clause 60, page 34, line 10, at end insert

'or

(c) there shall be liberty to apply to the court granting the warrant by any interested party for the return of the original documents or device,'.

The amendment relates to powers to seize documents and devices and our need to consider how long they can be held for. It is aimed at providing some process whereby a third party, whose device or document has been seized, has a right to apply to a court to have that device or document returned. This is particularly relevant to a third party whose device or document has been seized by the investigating authorities and who needs it back to conduct valid business. As things stand, a third party cannot get their property back, and they should have the right to ask a court whether they can.

Caroline Flint (Labour, Don Valley)

I understand the sentiments behind the amendment, but I believe they are covered by the Bill. Subsections (7) and (8) clearly set out the conditions under which prosecutors will decide whether documents or devices can be retained. An interested party seeking the return of a document or device can approach the prosecutor, who will determine whether retention is still justified under the subsections. If the person is not satisfied with the prosecutor's decision, it is open to them to go to court to seek judicial review of the decision or a civil order for the return of the documents or devices. Additionally, if the document or device is seized by virtue of part 2 of the Criminal Justice and Police Order Act 2001, the usual safeguards, including the ability to apply to a court for the return of documents or devices apply. We believe that that is sufficient, so I ask the hon. Gentleman not to press the amendment to a vote.

Jonathan Djanogly (Conservative, Huntingdon)

The Minister's judicial review would be a rather otiose procedure for the average businessman who wants his contract back, but I hear what she says, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 60 ordered to stand part of the Bill.

Clauses 61 to 64 ordered to stand part of the Bill.

Clause 65 - Assistance by offender: immunity from prosecution

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 174, in clause 65, page 36, line 34, leave out paragraph (e).

Bill O'Brien (Labour, Normanton)

With this it will be convenient to discuss the following amendments: No. 175, in clause 65, page 36, line 36, leave out

'or a person designated by him under subsection (4)(e).'.

No. 176, in clause 65, page 36, line 39, leave out

'or a person designated by him under subsection (4)(e)'.

No. 178, in clause 66, page 37, line 19, leave out

'or a person designated by him under section 65(4)(e)'.

No. 179, in clause 66, page 37, line 22, leave out

'or a person designated by him under section 65(4)(e)'.

David Heath (Liberal Democrat, Somerton and Frome)

We are now dealing with the new arrangements for providing immunity from prosecution. There are sound arguments for what is not quite plea bargaining but is of that ilk, in order to ensure co-operation in providing evidence.

However, in respect of immunity from prosecution it is a substantial step, a significant undertaking, to say that someone will not be prosecuted for offences that they have, or appear to have, committed, to encourage them to provide evidence. Given that those offences may be against persons who might properly expect that their assailant will be brought before a court in due course, it is something that should be undertaken only in exceptional circumstances.

The clause makes it clear that it is matter of exception, and I have no problem with that; the theory and purpose of the amendments is simply to provide that the authority for that decision—immunity from prosecution which, as I said, is a significant immunity—should be taken only at the highest level of the prosecution service, by the Director of Public Prosecutions, the Director of Revenue and Customs Prosecutions, the Director of the Serious Fraud Office or the Director of Public Prosecutions for Northern Ireland, and not by a person designated by them for the purpose.

It could be argued that the DPP is terribly busy and cannot deal with everything, but the statute places a lot of responsibilities directly on the DPP in person, and the proposal should be one of them. The decision should require his signature before immunity from prosecution is granted. I cannot understand why the Bill permits the designation of other prosecutors in the Departments. The Minister will need to assure me about the level of seniority at which those decisions will be taken and why it should not be expressly given to the DPP or his equivalent in the other investigating bodies.

Caroline Flint (Labour, Don Valley)

The hon. Gentleman reflects a valid concern that decisions about the granting of immunity, undertakings and the use of Queen's evidence agreements should be taken at senior level within the relevant prosecuting bodies. However, it is not practicable or appropriate for the individual directors to take all those decisions themselves. They need the ability to designate them to appropriately senior and experienced colleagues, but within a framework of guidance. We do not intend the powers to be made widely available to all prosecutors; the directors are best placed to ensure that those decisions are taken at the appropriate level and the clause provides for that.

Given my assurances about how seriously we take the issues and about the framework of guidance, I hope that the hon. Gentleman will accept that there are adequate safeguards in the clause and will not press his amendment to a Division.

David Heath (Liberal Democrat, Somerton and Frome)

The Minister is asking us to take a lot on trust in respect of the guidance that will be issued and the information that will be given later. Had she said that the level of seniority would go no lower than the deputy I would have said, ''Fair enough; I can see circumstances in which it would be appropriate for the deputy DPP and deputies to the other senior prosecutors to take appropriate action.'' However, I still have concerns. I do not suggest that the DPP himself or his equivalent would negotiate the terms of an immunity, but simply that the responsibility for issuing that certificate should lie with the senior prosecutor at the end of the day, because it is a very significant step to take and it should be exercised only at the highest level. I do not intend to press the amendment at this stage, but I hope that the Minister can give further thought to the matter and indicate before Report the level of seniority that she expects to be specified in the guidance to which she referred. Then, I will be able to consider whether we need to explore the matter further. It is, as I think the Minister understands, a matter of some gravity. If it were not for the fact that we often give specific and personal responsibilities to the DPP, I might not be pressing it in this form. However, we do, so I think it not unreasonable that a prepared certificate and the grounds under which it will be issued should be put before the DPP for imprimatur before it is issued.

That seems to be the appropriate way forward, so 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. 177, in clause 65, page 37, line 2, at end add—

'(8) If evidence on the basis of information of any description given by a person to whom an immunity notice has been given is admitted to court proceedings, the court must be advised of the circumstances.'.

The amendment deals with the consequences of evidence produced by a person who has been given an immunity notice. It builds on an assurance I was given on Second Reading that this is a matter of which the courts would, of necessity, be advised. I suspect that is so and simply need reassurance that when evidence has been derived from a person who has been given an immunity notice, the court will be aware of those circumstances before coming to a decision on trial.

It is obvious that evidence from a person in such a circumstance has to be considered carefully regarding its probity and evidential value, given the considerable advantage that person has been granted by the state in return for giving the evidence. If someone liable to be convicted of serious offences has been given immunity from that potential conviction, a jury is entitled to be aware of that fact and to weigh the probability that such evidence may have been tainted by the expectation of immunity which has been granted. That is not to say the evidence will have no weight. It will be taken in the context of the trial of a whole, as a matter which should be properly taken into account by the court in reaching its decision.

Andrew Mitchell (Conservative, Sutton Coldfield)

I am grateful to the hon. Gentleman for giving way, not least because this intervention enables me to avoid detaining the Committee by making a speech. We support his argument. Does he not agree that the situation he describes could lead to score-settling and so forth, and to evidence being tainted? It is important to hear from the Minister why the concerns set out in this amendment should not be detaining the Committee.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful to the hon. Gentleman for his support. I think the point is clear and needs no greater illumination. It is simply a matter of whether it is already covered by court procedure and rules of evidence, and whether we should be satisfied by that.

Vera Baird (Labour, Redcar)

I wonder whether the hon. Gentleman should not go further and say that it ought be a requirement that the immunity notice of any prosecution witness must be served on the defence. These notices will have conditions on them. A condition may be that he gives evidence against Vera Baird, and on trial I would want to know that—and want my counsel to be able to make full use of that.

David Heath (Liberal Democrat, Somerton and Frome)

I am glad that I gave way to the hon. and learned Lady. When she reinforces my case on such matters I feel that I am probably onto something even more worthy of careful consideration by the Minister.

Will the Minister indicate the extent to which she believes my concerns are covered by the provision? Assurances were given that there would not be circumstances in which a court was not made aware. I agree with the hon. and learned Lady that that disclosure should extend to the defence team in those circumstances. If it is not to be covered, how is the assurance that was given on Second Reading to be put into effect?

Caroline Flint (Labour, Don Valley)

I hope that what I have to say will reassure the hon. Gentleman and. Having heard the comments of my hon. and learned Friend the Member for Redcar, I think that we will meet her requirements as well.

If the subject of an immunity notice provides evidence that is potentially relevant to a case, the immunity notice will be disclosed to the defence in the usual way. That applies whether or not the prosecution are likely to seek to admit the evidence. Therefore, it is open to the defence or the prosecution to bring that to the attention of the court. We think that the provision is sufficient and, therefore, that it is for the trial lawyers to decide whether the existence of the immunity should be brought to the attention of the court.

David Heath (Liberal Democrat, Somerton and Frome)

The Minister is being helpful. She says that it will happen. Why will it happen? Under what regulation or rule of court will it happen?

Caroline Flint (Labour, Don Valley)

I am pleased to be able to inform the hon. Gentleman that it is a requirement to disclose the immunity to the defence under the Criminal Procedures and Investigations Act 1996. That provision would apply in the circumstances that we are discussing. I shall be happy to write to him with the detail of the relevant section if that will be helpful. For a number of reasons that have already been mentioned, it is appropriate that there be provision for both the defence and the prosecution to make the court aware of an immunity.

Vera Baird (Labour, Redcar)

My hon. Friend is being unequivocal. The basis on which it would be within the legislative provision to which she refers would be if the immunity undermined the prosecution or assisted the defence. In fact, it is likely to assist the defence, so she is probably right, but it is important to get her to say it. When she says that the information will be made available in the usual way, I hope that she does not mean it literally, since at the moment one has the devil's own job getting such information out of the Crown, and I hope that we will not have to struggle like that in the future.

Caroline Flint (Labour, Don Valley)

I shall not say that I am totally right. I am not a lawyer, so my hon. and learned Friend will know better than I what is meant by ''in the usual way''. I shall write to colleagues to reassure them.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful to the Minister for her reply. I am also grateful for the interventions of the hon. and learned Member for Redcar, who has the benefit of her court experience, which many of us do not have. I had thought that the statute to which Minister referred showed extraordinary prescience in anticipating that we would produce in this Bill a new species of immunity notice, so that no express reference is required. I now understand from what the hon. and learned Lady said that the information is merely subsumed within the general class of matters that might be of assistance to the defence. I am not entirely satisfied that that is adequate. However, the Minister has said that she will consider the matter.

I would be helpful if reference to an immunity were given to the defence as a matter of course, rather than the Crown having to assess whether that might be appropriate. It will be helpful if the Minister addresses that in the course of writing to me and other Committee members. I am sure that there is no difference of intention across the Committee. However, there is a slight question as to how the measure will work in practice, and whether the provisions to which she has drawn our attention are sufficient. We will be able to consider that in more detail once she has had the opportunity to write to us. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 65 ordered to stand part of the Bill.

Clause 66 ordered to stand part of the Bill.

Clause 67 - Assistance by defendant: reduction in sentence

Caroline Flint (Labour, Don Valley)

I beg to move amendment No. 167, in clause 67, page 37, line 31, after 'agreement', insert

'made with a specified prosecutor'.

Bill O'Brien (Labour, Normanton)

With this it will be convenient to discuss Government amendments Nos. 168 to 171.

Caroline Flint (Labour, Don Valley)

The amendments ensure that the written agreements referred to in clauses 67 and 68 can only be between a specified prosecutor and the defendant. That has always been our intention, as we set out in the White Paper. The clauses do not specify with whom the defendant can enter into an agreement, and I hope that the Committee will recognise that the amendments clarify the position. Specifically, they provide that the written agreements will be between the defendant and any prosecutor specified in clause 65.

Amendment No. 169 removes the reference to custodial sentences and ensures that the court should be able to undertake a review of any sentence imposed by the Crown court.

Amendment agreed to.

Amendment made: No. 168, in clause 67, page 38, line 34, at end insert—

'(9) An agreement with a specified prosecutor may provide for assistance to be given to that prosecutor or to any other prosecutor.

(10) References to a specified prosecutor must be construed in accordance with section 65.'.—[Caroline Flint.]

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

Jonathan Djanogly (Conservative, Huntingdon)

I rise on an point of clarification. We fully support the formalisation through written undertakings of plea bargaining and turning Queen's evidence. However, subsection (2) says:

''the court may taken into account the extent and nature of the assistance given or offered.''

I note the use of the word ''may'', which presumably means that the court could ignore the written plea bargain agreement if it so wished. Might not that create a problem? Could not the offender turn round and ask why he should take the risk of turning Queen's evidence if the court may turn round and say that it will take no notice of the agreement? In fact, could not the offender say, ''I won't sing unless I get immunity under section 65''? A bizarre situation could then arise. It would be in the public interest for the offender to take a lesser sentence and at least go away for some time, but, in the event, he might get immunity because of the lack of certainty.

Caroline Flint (Labour, Don Valley)

We believe that it is appropriate and important for the judge to have some oversight. We are talking about situations in which people have committed a crime and been charged with it. If the judge accepts the Queen's evidence, it is appropriate that he is able to take it into account when determining the reduced sentence, as he will have had oversight over the whole hearing into the offence with which the person was charged.

Someone who agrees to give evidence under the provisions will not be offered a deal stating how much will be taken off their sentence; that will be determined at the end of the trial process. Obviously, if they plead guilty, the process will be pretty quick, but we do not want to be seen to wheel and deal on reducing the sentence before that point, and we feel that the judge's involvement is an important safeguard to that end.

Sentencing in this country is a matter for judges. That is why we have not gone down the route, as other jurisdictions have, of giving prosecutors such powers when they are trying to get people involved in proceedings. We cannot force judges to take assistance into account in all instances, because it is important that they hear the case and understand the nature of the offences in which a person has been involved. Normally, a judge will do so, and the defendant can appeal the sentence if he believes that a relevant factor, such as Queen's evidence, has been ignored.

We are trying to make Queen's evidence much more transparent and accountable, and therefore much more used. In this country less than 1 per cent. of relevant cases involve Queen's evidence, whereas the figure is around 15 per cent. in Australia. However, we are mindful of the fact that we are talking about people who have committed offences to which they will, in most cases, have pleaded guilty. The judge must have the authority and power to deal with that as he sees fit at the time.

Jonathan Djanogly (Conservative, Huntingdon)

I do not disagree with the Minister, but point out that, as things stand, deals can be done. The reason why they have not been working is the lack of certainty that attaches to them. Addressing that is part of the purpose of the provisions in the Bill. Do the Government intend there to be a procedural agreement among the judges, so that in a certain situation they would act in a certain way, with the intention of giving more certainty and therefore a better chance that the provisions will work?

Caroline Flint (Labour, Don Valley)

I think that the fact that we are putting Queen's evidence on a statutory footing gives it far more certainty than the existing arrangements. I find it difficult to answer the hon. Gentleman's question now, however. He seems to be asking me to describe the circumstances in which a judge would not agree to an exchange involving Queen's evidence and a reduction in sentence for an offence to which an individual has presumably pleaded guilty. I am happy to write to the hon. Gentleman with more detail, and to copy the letter to other members of the Committee.

What we propose is a great improvement. There will be guidance to provide a framework and to give better security for the people whom we are trying to engage in providing information. However, when we are talking about people who have committed criminal offences, there is no such thing as done deal.

Question put and agreed to.

Clause 67, as amended, ordered to stand part of the Bill.

Clause 68 - Assistance by defendant: review of sentence

Clause 69 - Financial reporting orders: making

Jonathan Djanogly (Conservative, Huntingdon)

I beg to move amendment No. 201, in clause 69, page 40, line 14, leave out 'a magistrates' court or'.

Bill O'Brien (Labour, Normanton)

With this it will be convenient to discuss the following amendments: No. 202, in clause 69, page 40, line 39, leave out subsection (6).

No. 203, in clause 70, page 41, line 2, leave out from first 'the' to 'Court'.

No. 204, in clause 70, page 41, line 18, leave out subsection (6).

Jonathan Djanogly (Conservative, Huntingdon)

The idea of enhanced licensing power seems to be one of the more cutting-edge areas of criminal law, the basic idea being to look at the licence conditions for criminals, possibly post-release, or post-conviction and during prison, or after sentencing. As for when any changes will cut in, that is a debate that will come up later in the clause.

The licensing powers in question relate to financial reporting orders. The Opposition support the provisions. It should possible to mould financial reporting orders to fit the circumstances of a case. We also support the basic premise of ending the old arrangement, whereby which criminals could do their time and enjoy their ill-gotten gains once they came out of prison. A well drafted order should be an aid towards that end. However, the process is new and we need to tread carefully, not least given the human rights issues involved and the significant breach of rights to privacy that the orders will necessarily involve. We must ask at what point the infringement of privacy involved in such orders becomes unjustifiable, acknowledging that even where they are justifiable, their length and scope will need to be proportionate to the offence and the risk of reoffending. Unfortunately that important issue is not addressed in the Bill—

It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

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

Standing Committee D

Clause 69 - Financial reporting orders: making

Marion Roe (Conservative, Broxbourne)

I remind the Committee that with this we are taking the following amendments: No. 202, in clause 69, page 40, line 39, leave out subsection (6).

No. 203, in clause 70, page 41, line 2, leave out from first 'the' to 'Court'.

No. 204, in clause 70, page 41, line 18, leave out subsection (6).

Jonathan Djanogly (Conservative, Huntingdon)

This important issue, which I am sure all hon. Members will recollect, is not, unfortunately, addressed in the Bill. Basically, the Bill gives the courts the right to do whatever they like within a five to 20-year period for Crown courts and a five-year period for magistrates courts. That power needs to be further curtailed, even within the context of the list of offences in the clause.

I appreciate that it is a difficult issue. If someone is found guilty of obtaining property by deception, for instance, that does not necessarily mean that the amounts involved were significant. If very small sums were involved, a financial reporting order may be suitable for only a very short time, and it is questionable whether it would be suitable at all. Parliament should take more responsibility on this and the amendments set out our suggestions on how to go about that.

We have avoided formulae, or different terms for different crimes. Rather, we have looked at the court involved in the process, while bearing in mind that the Bill is meant to be about serious crimes. If the crime is dealt with by a magistrates court, where sentences must be for less than one year, the court should not have the right to issue financial reporting orders. Indeed, in deciding whether to send the case to a higher court, magistrates should bear in mind the likelihood that an order will have to be issued. Such orders are likely to be fairly difficult to get right, and one has to wonder whether the average magistrates court has the expertise to judge them. I should have thought that such things belonged in a Crown court.

Finally, there is the question of the practicalities. At present, the accused is asked before sentencing in a magistrates court to fill in a form outlining his income and expenses. In the real world, however, such forms are usually filled in lightly and in a rather haphazard way. For the most part, that does not really matter, because the vast majority of fines in a magistrates court will be minor. Indeed, that is the whole purpose of magistrates courts, which can hand out quick and cheap justice for mainly minor crimes. Introducing the concept of considering future finances could well be an administrative nightmare for the average magistrates court. For that reason, we have tabled the amendments.

David Heath (Liberal Democrat, Somerton and Frome)

I have some sympathy with the amendments, and I had intended to raise the issue in the clause stand part debate. I have no problem with the principle behind the financial reporting order procedure that the Government propose. The order is a potentially useful tool, but it is also a very substantial and potentially intrusive tool as far as an individual's privacy is concerned. It must be proportionate to the crime of which that person has been convicted.

The danger does not lie in the application of such orders by the Crown court, and we can be reasonably assured that the level of offence involved and the consideration given in such courts will be appropriate. Without in any way denigrating the powers or the responsibility of magistrates courts, however, the offences that are usually tried before them—irrespective of whether such offences fall within those listed in subsection (3)—are not such that one would normally consider a financial reporting order to be commensurate. There is a real issue of proportionality. The Minister may be able to convince me that there is a need for magistrates to have this power, but we need to hear that argument.

The same, of course, applies in Scotland. I think that the amendment to clause 70 tabled by the hon. Member for Huntingdon (Mr. Djanogly) is slightly defective in its phrasing, but nevertheless exactly the same arguments apply to the sheriff in Scotland, in relation to the level of criminality that is the subject of the trial.

Mr. Tony McWalter (Hemel Hempstead) (Lab/Co-op) rose—

David Heath (Liberal Democrat, Somerton and Frome)

I give way to the hon. Gentleman because he is such good value.

Tony McWalter (Labour/Co-operative, Hemel Hempstead)

I want to have just one more go without being slagged off, as I was this morning. It is obvious that a relatively trivial offence is sometimes the tip of an iceberg and creates a suspicion that the fact that a person has been caught with his hand in the till is not a one-off but part of a sophisticated operation that merits the name ''serious organised crime''. It is that suspicion that precipitates the provision that we are considering. Does not the hon. Gentleman understand that that is exactly what is needed to get to grips with what is happening in organised crime?

David Heath (Liberal Democrat, Somerton and Frome)

Even if I thought that ''slagging off'' was a parliamentary term, I am sure that I would never have applied it to the hon. Gentleman, but I understand his point: a process of investigation of serious crime often starts from a small beginning. However, he must understand that the penalty for someone else's major offence cannot be imposed on a minor offender. The person who, in his example, has inadvertently been trapped in a web of crime is the person who will be subject to a financial reporting order. That is where the proportionality issue arises. We may hear arguments from the Minister explaining why that should be, but I want him to consider whether, even in the instance suggested, the reporting order is appropriate to the level of criminality of the individual to whom it is applied.

That is the crux of the issue. We are not talking about Mr. Big making a report on his financial transactions, which would achieve exactly what the hon. Gentleman wants. We are talking about Mr. Little, who has been convicted of a minor crime, for which he may not even have received a custodial sentence, being required to fulfil the onerous responsibility of financial reporting on all his transactions for many years. We should think seriously about that when it concerns someone who has been convicted of a minor offence.

Jonathan Djanogly (Conservative, Huntingdon)

The hon. Member for Hemel Hempstead (Mr. McWalter) made a fair point, but in the example that he suggested, the magistrates court would refer the minor issue to the Crown court. It is a fair point. It does happen that small issues arise with important consequences. In that instance, the matter would be referred to the Crown court, so the issue remains valid.

David Heath (Liberal Democrat, Somerton and Frome)

That is a helpful intervention, and the hon. Gentleman is right. The court level at which a case is heard is a rough and ready guide to the severity and importance of the offence.

Mr. McWalter indicated dissent.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. Gentleman shakes his head, but I shall not slag him off; I simply express disagreement with him.

Vera Baird (Labour, Redcar)

I should not have thought that anyone would want what the hon. Member for Huntingdon (Mr. Djanogly) recommends: the committal of cases that do not merit the attention of the Crown court for the sole purpose of ensuring that the power in question is available. That would just clog up expensive state apparatus unnecessarily. On the other hand, if magistrates courts were prevented from using the procedure, and never became aware of its availability, people could elect to be tried in the magistrates court for relatively serious offences to avoid such an order.

If there really is a need for some procedure, and if the magistrates themselves think there is a need for such an order, my best suggestion is that there should be a power to commit after conviction. The Crown court could then be the agent which puts it in place. However, as the magistrates will start to be trained quite soon by the Judicial Studies Board, I would have thought that the board could lay down guidance and the magistrates could be trusted with it.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful to the hon. and learned Lady. I see some merit in the mechanism that she describes, although she then suggests that its apparatus might be too cumbersome to ensure that it would only be used sparingly and with good reason. The last thing I want is to suggest that the magistracy is incapable of making appropriate decisions. We have to be wary of what is a substantial intrusion when added to the sentence already placed on the individual concerned. We need, and the court needs, to be assured that the severity of that additional penalty is appropriate to the offence committed and the offences that the court holds to be in danger of being committed later. That is what the Minister has to persuade us of.

Dominic Grieve (Conservative, Beaconsfield)

I am sorry that I missed the start of the debate this morning. I am conscious that the probing amendments were, perhaps, the result of my perusing the amendment paper and putting them forward for consideration. I was particularly struck by a remark by the hon. Member for Hemel Hempstead.

The Minister may be able to help me, but I have always expected that an order of this kind would be made when someone was thought to be participating in a pattern of dishonest activities. Therefore it was, as much as anything else, intended as a control mechanism against future reoffending. If it is to be applied to a small, insignificant offender whom the prosecutor thinks may be part of a wider web of criminal and dishonest conduct, nothing is more likely to alert that person to having to make alternative financial arrangements than to be told in court that, every three months, he would have to produce his documents and report to somebody. That made me begin to wonder whether it was ever likely that a magistrates court case would come into this category.

People are going to make alternative arrangements. I thought that the measure was a way of suppressing nexus crime. Having arrested someone, knowing full well that they have a serious criminal lifestyle—heaven knows we debated this at great length in the Proceeds of Crime Bill—we would want to impose a sanction that their financial affairs would be closely scrutinised in future. I did not see it as a way of unearthing something down the line, since most people will make alternative arrangements when faced with such an order if they want to continue being dishonest. They will also try to conceal those arrangements from the investigators. Of course they may be caught, but they can certainly attempt it, which is why I took that view.

I am mindful of what the hon. and learned Member for Redcar (Vera Baird) said about not wanting to have too many committals to the Crown court. That is certainly a powerful argument, and it might be worth considering whether committal could only take place at the Crown court for the specific purpose of imposing such an order. That is likely to impose a greater burden on magistrates. I am sure it is one for which they could cater, but one is left with the slight anxiety that, because it is quite a complicated area, we may start getting orders made in cases which are not strictly necessary. We must face the fact that this is an onerous sanction.

In the past 24 hours, we have been reminded that criminals have rights. I do not disagree with that view, and we must ensure that whatever we do is proportionate.

Caroline Flint (Labour, Don Valley)

One reason why we do not support the amendment, which would mean that financial reporting orders could not be applied at magistrates court level, is that some offenders, convicted by a magistrates court of one of the specified offences, will pose a higher risk of reoffending. For those people, an order would be appropriate. As we discussed, some of the specified offences, such as offences under the Theft Act 1978 and intellectual property offences, can be tried either way. There is no reason why a magistrates court should not have the power to impose those sentences.

I agree with my hon. and learned Friend the Member for Redcar that we do not want to create the ridiculous situation in which either the Crown court is clogged up with cases or people are choosing to be tried in a magistrates court and therefore finding another loophole in the proceedings. An offender convicted by a magistrates court of obtaining services by deception under section 1 of the Theft Act could pose a sufficient risk of reoffending for the court to believe that imposing a financial reporting order on him was justified.

It is a basic principle of sentencing that the sentence must be proportionate. I have listened to hon. Members, but magistrates courts and the Crown court are capable of exercising this responsibility. Magistrates courts, magistrates and those who work alongside them are considering different ways of deterring future offending, which in some cases involves containing people who are considered a risk to the community. That might involve securing drug treatment for people. There are many different creative, and hopefully effective, ways in which magistrates can think beyond simply imposing fines or custodial sentences when they deal with individual cases. We are confident that magistrates will not use the powers in cases in which they are inappropriate. In any case, the prosecutor will be the one who requests the financial reporting orders.

However, there are issues to be addressed, to which the hon. Member for Beaconsfield (Mr. Grieve) referred. We are trying to determine whether financial reporting orders can work on several different fronts. One would hope that they will act as a deterrent against future offending behaviour, although it is undeniable that people may on occasion be tempted back into offending and that mistakes will be made. However, these financial reports contain information that could be important.

As we discussed earlier, the reports may keep people from using legitimate financial institutions to organise their criminal activity. If they act as a deterrent, provide intelligence, disrupt criminal activity or keep criminal activity away from legal enterprises, they are no bad thing.

Jonathan Djanogly (Conservative, Huntingdon)

Having heard the Minister's answer, I am not entirely convinced that leaving things as they are will lead to the clause being either proportionate or administratively realistic. I know that doubts were expressed as to whether magistrates would commit on the basis that they might not know about the availability of the orders, but I assume that the prosecution would have reminded the court at the time, so I cannot imagine them being forgotten about.

We do not, however, intend to take the matter further at the moment, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 69 ordered to stand part of the Bill.

Clause 70 - Financial reporting orders: making in Scotland

David Heath (Liberal Democrat, Somerton and Frome)

I am not familiar with Scots law—the Minister probably is not either—but the list of offences under subsection (3) looks uncommonly short. Does it encompass the same areas in law as that which applies in England and Wales?

Caroline Flint (Labour, Don Valley)

I shall ensure that the hon. Gentleman receives the precise answer to that question. The Scottish offences with which the clause is concerned are the equivalent of those in England and Wales—it says here.

Question put and agreed to.

Clause 70 ordered to stand part of the Bill.

Clause 71 - Financial reporting orders: effect

Jonathan Djanogly (Conservative, Huntingdon)

I wish to raise an information point. The clause does not specify that financial reporting orders are to start at the end of the custodial sentence, even though that was the position set out in the White Paper. I raise the point noting that Liberty questions whether offenders in prison would be able to comply with the requirements of an order.

I shall be interested to hear the Minister's views. I think that, given that the Bill deals with serious organised crime, the provision is right and that it should be possible to place an FRO on a Mr. Big in prison, on the grounds that he could be running a drugs empire from prison. However, compliance might not be possible for the small criminal in prison who does not have an accountant. Considering the Minister's reluctance, under previous amendments, to address the question of limiting FROs to serious cases, the point perhaps becomes more relevant.

Could the Minister also look again at subsection (10)? Is the threat of an extra maximum of 51 weeks in prison enough of an incentive to ensure compliance with an FRO by a big criminal who has earned millions of pounds from illegal activity?

Caroline Flint (Labour, Don Valley)

Our view, after some discussion, is that people in prison do manage to continue to oversee their financial activities in a number of ways. They may not have an accountant, but they have visits from family members and others. Considering the range of people who may be affected by a financial reporting order, it is important to recognise that someone outside prison could squirrel away a huge amount of money, or transfer assets or put them in someone else's name, in order to continue the business in another form. We did not want to lose an opportunity to deal with that. I am glad to hear that in principle the hon. Gentleman sees merit in that argument.

On subsection (10), we have taken advice on a number of provisions in the Bill covering such offences such as, for instance, people not complying with disclosure orders or giving incorrect information. Subsection (10) was drafted after consultation with a number of different people, so I shall write to the hon. Gentleman to explain why we felt that it was appropriate.

David Heath (Liberal Democrat, Somerton and Frome)

Presumably, under subsection (10) the offence and the sentence can be applied each time a report is required. Therefore, a person in prison who continually fails to make their financial records available will simply stay in prison for a long time.

Caroline Flint (Labour, Don Valley)

That sounds entirely logical. If people in prison do not comply with such a requirement for action, that would have to be looked into in terms of their prison sentence. As I said, I shall clarify the issue. However, if someone receives a prison sentence and is then given a financial reporting order with which they do not comply, that is a different offence. We have to be clear. I do not want to confuse matters, but I am happy to clarify that in a letter.

Dominic Grieve (Conservative, Beaconsfield)

I think that I understand what the Minister means. For a moment, it seemed she was suggesting that a person who did not comply with a reporting order would stay in prison for longer but on the existing sentence. I do not think that can be right. I want to clear it up, because I do not think that that is what the hon. Lady intended to say.

Caroline Flint (Labour, Don Valley)

No, that is not what I meant. Obviously, the courts would impose a prison sentence and a financial reporting order, but the penalty for not complying with the reporting order is an add-on. I will write to both hon. Gentlemen to clarify that point a little further.

Vera Baird (Labour, Redcar)

It is a small point, but the hon. Member for Huntingdon is conjuring with the notion of someone who does not have the resources to make a return. One defence to the charge of not making a return is reasonable excuse. That may offer some reassurance.

Caroline Flint (Labour, Don Valley)

I am indebted to my hon. and learned Friend's expertise.

Jonathan Djanogly (Conservative, Huntingdon)

I was not suggesting a defence of being unable to comply. I was simply questioning whether it is fair that a small criminal, who does not have the resources of big criminals, should have to make such a report. Can they physically do it? The Minister said that they have researched the point and that the answer is yes. I am happy to accept that, but it is a slightly different issue.

Question put and agreed to.

Clause 71 ordered to stand part of the Bill.

Clause 72 - Financial reporting orders: variation and revocation

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 205, in clause 72, page 42, line 15, leave out 'convicted' and insert 'sentenced'.

This is a probing amendment. I am a little puzzled by subsection (3), which states:

''if the order was made on appeal, the application must be made to the court which originally convicted the person in respect of whom the order was made.''

Surely the application needs to be made to the court that originally sentenced the person: the convicting court and the sentencing court will not necessarily be one and the same. It would be most undesirable if a person convicted in the magistrates court and committed to the Crown court for sentence ended up back in the magistrates court. It seems desirable, if possible, that the judge who originally imposed the sentence should hear the case. I would be glad to hear whether the Minister thinks that there is any substance in my proposal.

Caroline Flint (Labour, Don Valley)

I have some sympathy with the hon. Gentleman's proposal. He is right to point out that offenders are not always sentenced by the same court that convicted them. We are considering tabling some amendments dealing with the use of financial reporting orders in Northern Ireland, and I will consider whether the present area could be better informed as well. On that basis, I ask him to withdraw the amendment.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister. I am pleased that scrutiny in Committee is doing what it is supposed to be doing. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

Jonathan Djanogly (Conservative, Huntingdon)

Briefly, the clause provides for the variation or revocation of an FRO. The criminal who is reporting can make such an application, but how many times will an offender be able to make such an application? In effect, it is an appeal. We would not want the courts clogged up with people appealing repeatedly against an FRO. Could the Crown be awarded costs in respect of an offender's failed appeal?

Caroline Flint (Labour, Don Valley)

If the hon. Gentleman will bear with me, I shall write to him. He makes a good point. We do not want mischievous appeals, and we need some sort of operational structure, both for those who have to comply with FROs and for those who need to vary them, such as probation officers and others. I shall get some details about that. I told that it is a matter for the rules of the court, but I shall consider the matter.

Question put and agreed to.

Clause 72 ordered to stand part of the Bill.

Clause 73 - Financial reporting orders:

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 206, in clause 73, page 42, line 25, at end insert

'but he must inform the person in respect of whom an order was made that he has disclosed a report and to whom he has disclosed it.'.

The clause deals with the verification and disclosure of financial reporting orders. I accept that for the system to work, it must be possible for those examining the orders to check that what they are being told by the defendant—the convicted criminal who is under an obligation to provide the information—is accurate. However, there does not seem to be any suggestion in the clause that the person about whom questions are being asked will know who is being approached. The Minister might argue that there are compelling reasons why that should be the case, but there can be little doubt that that is a considerable intrusion on completely legitimate private relationships.

Let us take the example of an individual who has been convicted but is now going straight. At regular intervals, he presents his bank statements or statements from his employer, and the officer or investigator speaks to his bank manager or employer about it. That has the capacity to cause considerable damage to those private relationships. I have a horrible feeling that in some cases it could lead to a person losing his job if it had not been known that an FRO was in force. What is the justification for not informing somebody who is providing information in respect of an FRO that contact has been made with certain people to check it? In the ordinary course of events, I would expect a person to be entitled to that information. The Minister might persuade me that in the particular circumstances of an FRO, it would not be right to do it, because if an irregularity were shown up, the investigator might want to investigate other matters.

However, there might be a halfway house. There could be a discretion not to inform if it were considered that there had been some impropriety, but to inform if everything were shown by the checks to be all right. I have not sought to tackle that position in the amendment, but I have an anxiety about a situation in which information is obtained from the defendant and is checked behind his back with individuals with whom he has private or commercial relations, while he is kept completely in the dark that those contacts have taken place. That could cause considerable damage in the case of somebody who is trying to lead a law-abiding life. It is a difficult matter to reconcile, but I should be grateful to hear from the Minister how the Government view the issue.

Caroline Flint (Labour, Don Valley)

As has been outlined, the amendment would require the person receiving financial reports to inform the subject of them every time a report was disclosed. That would provide the subject with a complete list of the enforcement agencies that were taking an interest in his potentially illegal financial affairs, as well as any third parties who had been asked to provide verification of the information in the report.

I acknowledge that this is a difficult area. One problem is that investigations could be prejudiced and third parties put at risk of intimidation in the course of verification of information. The other is that the probation service—as the go-between—could gain an unnecessary bureaucratic burden. However, it is important that the individual to whom an FRO is attached is fully aware of how the information might be used, and who might have access to it. In that situation, it is right that we issue guidance so that those who are subject to the orders are left in no doubt about what the content of the reports will potentially be used for and by which agencies. We believe that the drawbacks of the amendment outweigh the benefits, and we think that it would create an over-bureaucratic process. I ask the hon. Gentleman not to press his amendment.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to learn from the Minister that the guidance will cover that concern. Drafting the amendment, I had not thought in terms of someone having to be told that the investigator had shared the information with some other enforcement agency. I was specifically concerned about its capacity to intrude on the private or commercial relations that an individual might have with his bank manager or his employers. Those were the examples that I could think of—there may be others. I do not have a great problem with the sharing of information with Customs and Excise, the security services or whoever else. That does not trouble me. If the guidance is properly drawn up, I suspect that the problem that I have seen can be addressed. In the circumstances, I shall have no hesitation in asking leave to withdraw the amendment.

Caroline Flint (Labour, Don Valley)

In most circumstances, it is unlikely that an employer will be contacted. I do not want to misdirect the Committee—that may be a possibility in certain circumstances. That is why I made the point about third parties potentially being subject to intimidation. I hope that the guidance will cover some of the issues.

Dominic Grieve (Conservative, Beaconsfield)

I can see the Minister's point that it might be unusual for an employer to be contacted. I would certainly expect that if a substantial sum of money were to appear in a bank account and the person were to say that they sold their car to someone down the road, the investigator might want to go off and check. If it turns out to be a legitimate transaction, that has the capacity to inform the person down the road of the fact that the person up the road, with whom they thought that they were having perfectly amicable relations, is subject to an FRO. It is one of those matters of balance, but if the guidance is issued so that we do not end up with a situation, as the Minister has rightly appreciated, where people complain that their attempts to go straight have been wrecked by intrusive disclosure of information about their finances when they have done nothing wrong. That is what we have to guard against.

I accept that those who have committed criminal offences and are subject to FROs will have to accept the burden that goes with it. That is just tough. However, the dividing line that we have to find is that between being tough and being over-tough or unfair. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

Vera Baird (Labour, Redcar)

I wish to ask the Minister about the references made in a couple of the provisions to a report being made to a ''specified person'' by somebody subject to what we have now slipped happily into calling FROs. Who are the specified people likely to be? Are they likely to be the police, SOCA or the Assets Recovery Agency? To whom is it likely that someone will have to make such a report on an ongoing basis?

Caroline Flint (Labour, Don Valley)

I think that I am right in saying that the probation officer will act as the person to whom the reports will come, as I mentioned earlier. From that point, access to and information on the reports for intelligence or verification purposes that might be sought by other agencies.

Question put and agreed to.

Clause 73 ordered to stand part of the Bill.

Clause 74 ordered to stand part of the Bill.

Schedule 5 - Persons specified for the purposes of section 74

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 180, in schedule 5, page 157, line 19, at end insert—

'(1A) A person to whom a disclosure notice has been given under section 56, whether or not information supplied by that person has been or might be used in legal proceedings.'.

Marion Roe (Conservative, Broxbourne)

With this it will be convenient to discuss the following: Amendment No. 181, in schedule 5, page 157, line 19, at end insert—

'(1A) A person to whom an immunity notice has been given under section 65, whether or not information supplied by that person has been or might be used in legal proceedings.'.

Amendment No. 182, in schedule 5, page 157, line 19, at end insert—

'(1A) A person to whom a restricted use undertaking has been given under section 66, whether or not information supplied by that person has been or might be used in legal proceedings.'.

Government amendments Nos. 52, 56 and 33.

David Heath (Liberal Democrat, Somerton and Frome)

We come now to the persons specified for the purposes of clause 74, which deals with the protection of people involved in investigations or proceedings. I note the clause is not entirely prescriptive, in that subsection (7) allows any other person to be given protection on other grounds, but if we are to protect people involved in criminal investigations or the legal proceedings that follow on from them, the provisions should be as comprehensive as possible.

The three categories of person who might usefully be added to the list in schedule 5 are dealt with in earlier parts of the Bill. They include those who are given immunity, those on whom a disclosure notice has been served to gain information and those to whom a restricted use undertaking has been given in return for the information that they supplied. It might be argued that they would normally be covered by paragraph (1) of schedule 5, which refers to

''A person who is or might be, or who has been, a witness in legal proceedings''.

However, they might not fall into that category because the information that they provide is of no evidential value and the investigating authorities consider it unhelpful to the case that is being presented. However, if it is known that a disclosure notice has been served on them, or that they have entered into immunity arrangements or a restricted use undertaking, they may be in considerable danger from somebody against whom legal proceedings will be taken or, indeed, somebody who, up until that point, has not been the subject of proceedings but who is still at large and able to cause mischief.

The amendment would give a clear sign to people who may or may not give information that is of evidential value. They should be afforded the greatest possible protection if we are to persuade them to enter into the arrangements that the Bill envisages for them. It would therefore be sensible to list them in the schedule as people to whom statutory protection is available and can be afforded by the investigating authorities.

Caroline Flint (Labour, Don Valley)

We share the hon. Gentleman's concerns. He raised the issue on Second Reading and we had a discussion about it earlier today. We are happy to address those concerns to ensure that persons to whom a disclosure notice has been given are covered by the witness protection provisions. However, the phrase

''whether or not information supplied by that person has been or might be used in legal proceedings''

could lead to confusion. It does not fit well with clauses 56, 65 and 66, because it is not a statutory requirement for the issue of notices under those clauses that the person has supplied information.

I hope that the hon. Gentleman will accept the reasons that I have outlined. I agree to his amendment in principle, and if he will withdraw it, I shall table my own amendments on Report to address the concerns that he and others have expressed.

Government amendments Nos. 52 and 56 are an attempt to ensure that we leave out no one we think should be protected.

David Heath (Liberal Democrat, Somerton and Frome)

I thank the Minister for those comments. The only reason I proposed that slightly complicated formulation was to differentiate the people I had in mind from those who will already be covered because they might be or have been a witness in legal proceedings. However, I am sure that the Minister can produce a better formulation, and provided that my concerns are dealt with, I shall be entirely content. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: No. 52, in schedule 5, page 157, line 29, at end insert—

'6A (1) A person who is or has been the Director of Public Prosecutions for England and Wales.

(2) A person who is or has been a member of staff of the Crown Prosecution Service for England and Wales.

6B (1) A person who is or has been the Director or deputy Director of Public Prosecutions for Northern Ireland.

(2) A person who is or has been a person appointed under Article 4(3) of the Prosecution of Offences (Northern Ireland) Order 1972 (1972/538 (N.I.1)) to assist the Director of Public Prosecutions for Northern Ireland.

6C A person who is or has been under the direction and control of the Lord Advocate in the Lord Advocate's capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland.

6D (1) A person who is or has been the Director of Revenue and Customs Prosecutions.

(2) A person who is or has been a member of staff of the Revenue and Customs Prosecutions Office.'.

No. 53, in schedule 5, page 158, line 2, after '(b)', insert 'is or'.

No. 54, in schedule 5, page 158, line 6, after 'who', insert 'is or'.

No. 55, in schedule 5, page 158, line 8, after 'who', insert 'is or'.

No. 56, in schedule 5, page 158, line 19, at end insert—

'15A (1) A person who is or has been the head of the Civil Recovery Unit, that is to say of the organisation known by that name which acts on behalf of the Scottish Ministers in proceedings under Part 5 of the Proceeds of Crime Act 2002 (c. 29) (civil recovery of the proceeds etc. of unlawful conduct).

(2) A person who is or has been a member of staff of the Civil Recovery Unit.

15B (1) A person who is or has been a person appointed by virtue of section 246(1) of the Proceeds of Crime Act 2002 (c. 29) as an interim receiver.

(2) A person who assists or has assisted an interim receiver so appointed in the exercise of such functions as are mentioned in section 247 of that Act.

15C (1) A person who is or has been a person appointed by virtue of section 256(1) of the Proceeds of Crime Act 2002 (c. 29) as an interim administrator.

(2) A person who assists or has assisted an interim administrator so appointed in the exercise of such functions as are mentioned in section 257 of that Act.

15D (1) A person who is or has been the head of the Financial Crime Unit, that is to say of the organisation known by that name which, among other activities, acts on behalf of the Lord Advocate in proceedings under Part 3 of the Proceeds of Crime Act 2002 (c. 29) (confiscation: Scotland).

(2) A person who is or has been a member of staff of the Financial Crime Unit.'.—[Caroline Flint.]

Schedule 5, as amended, agreed to.

Clause 75 to 78 ordered to stand part of the Bill.

Clause 79 - Defences to liability under section 78

David Heath (Liberal Democrat, Somerton and Frome)

I want to make what might seem a rather spurious point, which I did not think was worthy of amendment, although I would like the Minister's advice on it. What happens if person P dies? Do the requirements against disclosure die with that person? If so, P's dependants may find themselves at risk because of information disclosed.

My point is not entirely spurious, as I hope the Minister appreciates. There is no provision covering what happens posthumously to the protected identity of the person. To what degree is there still a duty to ensure that P's identity is not revealed? There could be significant repercussions for the family and acquaintances of that person, not least because the children might discover that their father or mother was not who they thought they were but had a protected identity. That is a hypothetical case, but one that could happen and it might be worth the Department's while to consider it.

Caroline Flint (Labour, Don Valley)

My understanding is that when someone is put under a witness protection programme the protection needs of their immediate family and the people with whom they share or have shared a household would be assessed too. It would therefore be logical to assume that even if the prime person in the case died, the risk assessment would be made for those others.

I am informed that ''person'' in subsection (3)(b) continues to be associated with P, even though P is dead, therefore protection of that person continues. That is a rather legalistic way of saying what I think I just said. As we set out, close family members and acquaintances who would be part of the protection arrangements will be considered, and that should not be affected by the death of the prime person. There would have to be a risk assessment and, if necessary, protection would have to continue.

David Heath (Liberal Democrat, Somerton and Frome)

The Minister is moving a long way towards what I seek. Perhaps it would have been better to raise the issue under clause 80, although the two clauses are related. However, revealing the true identity of a deceased person would not be an offence. Although the other people would retain their protection, the continuing protection of that identity would have ceased, as I read it, under the statute. That is the potential difficulty that I have spotted. As I say, it may be that nothing could occur in reality, but I ask the Minister to consider that point.

Vera Baird (Labour, Redcar)

I am just wondering if that is a problem, because there are offences of disclosing information relating to persons assuming new identities. I imagine that an offence would be committed if anything was done that was likely to disclose the identity of the person surviving, which disclosing the deceased person's identity would be likely to do. The person who is associated with the principal prosecution witness, whoever that is, is entitled to a protection order of their own under schedule 5, paragraph 18. For safety's sake they could be given separate orders; it would then be very clear that anyone disclosing the true identity of the dead person would be committing an offence.

Geoffrey Clifton-Brown (Conservative, Cotswold)

I wonder if the Minister's explanation is correct. I do not want to press for a debate on clause 80, but it is relevant to what we are talking about. Subsection (2) states:

''A person (D)''—

that is, a person associated with P—

''commits an offence if . . . D discloses information which relates to a person (P) who is or has been a protected person''.

I assume that ''has been'' could mean that they are deceased. D also commits an offence if

''P assumed a new identity in pursuance of arrangements made under section 74(a)''.

I wonder if clause 80 does in fact indicate that if someone dies and their close associate D discloses their identity, D could be committing an offence. Will the Minister comment?

Caroline Flint (Labour, Don Valley)

With the Committee's agreement, I shall write to hon. Members to clarify this matter.

Question put and agreed to.

Clause 79 ordered to stand part of the Bill.

Clause 80 to 82 ordered to stand part of the Bill.

Clause 83 - Transitional provision

Clause 86 - Interpretation

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 183, in clause 86, page 49, line 42, at end insert—

'(d) they have such a relationship to that person that their safety can reasonably be regarded to be at risk'.

The interpretation is significant, because the clause contains quite a narrow definition of a person associated with another person for the purposes of providing protection. Subsection (4) says:

''A person is associate with another person if any of the following apply . . . they are members of the same family . . . they live in the same household . . . they have lived in the same household.''

That raises the question of what happens to, say, the fiancé of a protected person, who does not live in the same household, however unfashionable that might seem, who has never lived in the same household and is not a member of the same family but who might be considered to share the same risk, if only as a way of putting pressure on the person in the first instance. A business partner of the protected person might also be considered to share the same risk, but would certainly not be a member of the same family and would not live in the same household or fall into any of the categories that have been mentioned. There is a gaping hole in the provisions in relation to people who are closely associated. I am not in the business of extending the protection measures to large groups of people; that is not appropriate. However, I want to ensure that we provide properly for people who are closely connected with a person who is at risk and who share that risk. That is the intention of the amendment, which I think is self-explanatory. I do not believe that the category of person that I have mentioned is identified within the clause as it stands.

Caroline Flint (Labour, Don Valley)

The hon. Gentleman has hit the nail on the head. Countless people could, in one way or another, be held to have a close association with an individual to whom witness protection arrangements apply. Wherever we draw the line, it will be difficult. That is why we felt that, in the context of the statutory duty in relation to witness protection, the category that we have identified—members of the same family who live in the same household or who have lived in the same household—was as wide as we could draw it. Our provisions limit to those whom we feel to be at most obvious or immediate risk the circle of people whom the police can by default include in protection arrangements. We acknowledge that others with a relationship to the protected person might in some circumstances reasonably be regarded as at risk. However, there are other ways in which the needs of such people can be dealt with by the police outside the statutory scheme, consideration being given on a case-by-case basis to the degree of risk that they face.

The statutory scheme as outlined in the Bill is broad. We need to think about the limits that we set to it, which do not necessarily mean that the examples that the hon. Gentleman has given could not be dealt with. The issue is sensitive and it is difficult to know where to draw the line. However, we feel that we have drawn it as wide as possible while leaving some flexibility to consider other individuals, either in their own right or in terms of their association with a protected person. I hope that that satisfies the hon. Gentleman.

Claire Ward (Labour, Watford)

Can I assume from the way in which the Bill is drafted that it would not cover people who are protected or living under new identities not because they are witnesses but because they have been defendants?

Caroline Flint (Labour, Don Valley)

My understanding is that if somebody has been a defendant and—going back to our earlier discussion—has provided evidence that has helped to convict other criminals, there might be issues about his future protection. If I have not understood my hon. Friend correctly, she might like to ask the question again. If she is talking about a defendant having rights to protection under the scheme, we might have to protect individuals who have been involved in crime. For example, if they have given Queen's evidence or have immunity and have helped to convict others, there could be issues about their protection.

Claire Ward (Labour, Watford)

I can understand the circumstances that the Minister describes. For example, Maxine Carr is a defendant, convicted, and now under police protection with a new identity. She might well have been a witness in relation to Ian Huntley or in other circumstances. In a case such as that, I would assume that no protection would apply. Can the Minister confirm my interpretation?

Caroline Flint (Labour, Don Valley)

I can assure my hon. Friend that the provisions would not apply to released convicted offenders such as Maxine Carr or Thompson and Venables, whose case was also widely publicly discussed. They are meant to protect witnesses of crimes and other individuals who are assisting the criminal justice system, not offenders. Our principal aim is to encourage members of the public to come forward and to support them. It is inevitable that some witnesses will have been involved in criminal activity, but they and the other categories of people to be covered will be at risk from the criminals against whom the case is made. That is entirely different from the cases of Maxine Carr or Thompson and Venables, and no one should see the provision as something that would encompass those individuals.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful to the Minister for her reply. She takes these matters extremely seriously, as do I. I understand that we need to draw a line somewhere, but I do not think that the definition is right at the moment. It does not seem sensible that under the scheme, statutory protection could be given to someone who, 20 years ago, was a flatmate of the principal in the case but not to the person whom the principal intends to marry in three weeks' time.

Caroline Flint (Labour, Don Valley)

I want to clarify one of the issues about people who have lived in the same household. We placed that in the Bill not so much to cover flatmates from 20 years ago, but ex-husbands and wives—for example, the ex-wife of a protected person who may be living with the children from that relationship at another address but had shared a household with the protected person. We were trying to identify close relationships. I hasten to add that we did not want to identify only relationships based on marriage or, for that matter, only heterosexual relationships, which is why the provision refers to sharing a household.

David Heath (Liberal Democrat, Somerton and Frome)

I understand that. However, I still find it odd that an estranged husband or wife seems to have a higher level of protection under the clause than a current fiancé or fiancée. That does not seem to make sense. The provision still contains a lacuna.

Dominic Grieve (Conservative, Beaconsfield)

I had taken the assumption—although perhaps I am wrong—that the category of person described by the hon. Gentleman would still be eligible for police protection if it were thought that he or she might be subject to any sort of crime of any kind. That would apply irrespective of clause 74. That was why I was fairly relaxed about the matter. If I am wrong about that, the Minister will doubtless intervene and tell me or the hon. Gentleman.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. Gentleman is clearly right. There is nothing to stop the police from providing protection. The point is that that protection will not have the support of the ancillary clauses in the Bill that provide for it to be an offence to reveal identities and the various measures that would provide statutory support for that protection. I am suggesting only that anyone who is in a close relationship, whatever it may be, with the individual who is the principal person protected is entitled to consideration for statutory protection rather than for the police protection that would, I am sure, be available in those circumstances. It seems a rather arbitrary cut-off point that specifically excludes the people I have mentioned. I do not think that that is the Government's intention. I think that they have simply found an appropriate stop point and gone no further. They could have considered the depth of the relationship that might incur additional risk to another individual.

Geoffrey Clifton-Brown (Conservative, Cotswold)

Another small point that the Minister might like to consider is that if people are not given statutory protection, but need to be protected under the sort of arrangements that my hon. Friend the Member for Beaconsfield has mentioned, the relevant police force would not be encouraged to give them protection, because witness protection tends to be expensive.

David Heath (Liberal Democrat, Somerton and Frome)

The whole point of the protection provisions—people are given police protection and new identities now—is that various things flow from them to create stronger protection. That should be made available to those whom the police or the other services believe to be genuinely at risk—at a similar level of risk to the principal person who is to be protected under the scheme. At the moment such people are excluded by the specific references in the clause.

Caroline Flint (Labour, Don Valley)

The debate has highlighted the complexity of human relationships; it is difficult when we must draw a line, because people will always fall on either side of it. Issues have been raised that I shall consider and we shall return to the matter later. However, I ask hon. Members to bear in mind that we are dealing with statutory provision, and it is always difficult to know where to draw a line. We live in a complicated world of complicated relationships and extended families. I agree with the hon. Member for Beaconsfield that the clause does not provide that other people should not be protected.

Vera Baird rose—

David Heath (Liberal Democrat, Somerton and Frome)

The Minister was intervening on me, so I shall resume, but first I should love to take an intervention from the hon. and learned Lady.

Vera Baird (Labour, Redcar)

My intervention is really directed to the Minister. Granted that the power in clause 74 is permissive—it allows protection providers to provide protection if they consider it appropriate—is there any real need for an associated person to be further defined? Could we not just leave the provisions so that a person associated with the person specified is entitled to be considered for protection, and leave it to the discretion of the authorities to decide whether the association is close enough to put them in danger?

David Heath (Liberal Democrat, Somerton and Frome)

I think that the hon. and learned Lady is right. Had I not been trying to amend what the Government have proposed, I should simply have used the formula in my amendment, of someone with

''such a relationship to that person that their safety can reasonably be regarded to be at risk''.

That is the discretion that needs to be applied by the investigating and protecting authorities. They will not use their budgets for that purpose lightly and it seems odd to exclude anyone who might need that protection from consideration.

The Minister has said that she will consider the matter again, and I do not want to prolong the debate. We have had a good exposition of some of the issues and I am grateful to the Minister for at least listening to what I have to say. On that basis, at this stage I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 33, in clause 86, page 50, line 20, at end insert—

'(7A) A reference to a person who is or has been a member of staff of an organisation includes a reference to a person who is or has been seconded to the organisation to serve as a member of its staff.'.—[Caroline Flint.]

Clause 86, as amended, ordered to stand part of the Bill.

Clause 87 ordered to stand part of the Bill.

Clause 88 - Mutual assistance in freezing

Dominic Grieve (Conservative, Beaconsfield)

I tabled an amendment that would have deleted the clause, but that was not my purpose. I really wanted to alert the Minister to the fact that I should like an explanation about what is intended. As I understand clause 88, it puts into effect the Council framework decision 2003/577/JHA, which must be accomplished by primary legislation because it falls outside the scope of ordinary European Union directives. It deals with the execution in this country of orders freezing property or evidence. It would useful if she could outline how she expects the system to work in practice before we enact an important piece of primary legislation.

Caroline Flint (Labour, Don Valley)

Much of our discussion has been about recognising the way in which organised crime works. It is global activity, trading and working across national borders, so we need an international approach to tackling it. The clause embraces that approach, allowing the UK to implement obligations arising from the EU framework decision on freezing property and evidence. The key objective of this EU decision is to establish the rules by which member states recognise and execute in their respective territories freezing orders issued by the judicial authority of another member state. Such freezing is vital if property which would be liable to confiscation as the proceeds of crime is not to disappear. This is a significant example of what can be achieved through co-operation between member states, based on the principle of mutual recognition in criminal matters.

That approach was endorsed by the EU Heads of State and Heads of Government at the European Council in Tampere on 15 and 16 October 1999, assuming that competences in the decision to be recognised and acted on would always be taken in compliance with the principles of legality, subsidiarity and proportionality. The clause allows the Secretary of State, or Scottish Ministers, to implement these obligations by order under the affirmative resolution procedure, rather than by having to enact primary legislation. The power vested in the clause to create such provisions is also subject to certain qualified restrictions. We therefore envisage it enabling the UK to freeze property or assets suspected to be the proceeds of crime more quickly and with less formality than at present. Such freezing should only be a short-term and temporary measure, and must be followed up quickly by a formal request for confiscation. It is something that we and our European colleagues will gain from. I hope that that answers the hon. Gentleman's query.

Dominic Grieve (Conservative, Beaconsfield)

I simply raise this question as the devil always lies in the detail. I want to make it clear that I am not objecting to the Council framework decision 2003/577/JHA, but if its enactment is going to be complex, I would usually think it good for that to be done in primary legislation. The problem, as the Minister knows, is that its enactment is not simple and we have the opportunity only for a short debate on a statutory instrument. From my experience, that is when we start making mistakes. Would it not be better to have primary legislation to initiate what is quite an important piece of an international co-operation treaty that is to be enacted into British law?

Caroline Flint (Labour, Don Valley)

The implementation of the framework decision on property that is liable to confiscation is particularly complex given our own extensive provisions in the Proceeds of Crime Act 2002 and the differing powers enjoyed by other EU member states. I fear it has not been possible to finalise our proposals in time for this Bill. Had we included any such provision, it would have considerably lengthened and complicated the entire measure. Similar consideration did not arise as regards implementation in the context of terrorist property and evidence, which was achieved in the Crime (International Co-operation) Act 2003. As I said, the affirmative resolution measure also allows for debate in Parliament.

David Heath (Liberal Democrat, Somerton and Frome)

Will the Minister assure us that any secondary legislation will be based on full reciprocity with applicable measures of other states?

Caroline Flint (Labour, Don Valley)

Yes.

Question put and agreed to.

Clause 88 ordered to stand part of the Bill.

Clause 89 - Confiscation orders by magistrates' courts

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 216, in clause 89, page 52, line 1, leave out subsection (3).

I have a sense of déjà vu when I see the provisions of the Proceeds of Crime Act come back to haunt me. It is amusing and quite instructive to see circumstances—we shall consider them in a moment—in which it has been found necessary to tweak that legislation, despite the 36 sittings in Committee in which, I seem to recall, some of us here today participated.

The first tweak is rather straightforward. I may have misunderstood clause 89, but I thought that it referred to variations that the Secretary of State might wish to make for confiscation order purposes in relation to part 2 of the 2002 Act and part 4 of that Act in relation to Northern Ireland. When I saw subsection (3), I was a little startled to discover that any order that the Secretary of State chooses to make could

''amend, repeal, revoke or otherwise modify any enactment.''

That does not show much confidence on the part of the parliamentary draftsman that amending parts 2 and 4 would not have the most hideous knock-on consequences.

As the Minister probably knows, I think it a somewhat Henrician clause. In the circumstances, I am a bit troubled by it. I should be grateful if she could explain why subsection (3) was thought necessary. It appears to give the Secretary of State extensive powers, over and above what Parliament would normally give except with very good reason.

Andrew Mitchell (Conservative, Sutton Coldfield)

I hesitate to display my ignorance to the Committee and to my hon. Friend, but will he enlighten us on what he means by a Henrician clause?

Dominic Grieve (Conservative, Beaconsfield)

A Henrician clause is one that has Henry VIII qualities.

David Heath (Liberal Democrat, Somerton and Frome)

Not Henry III?

Dominic Grieve (Conservative, Beaconsfield)

I always thought it unfair to Henry VIII. Other monarchs would have liked such powers.

It is an extensive power, and I should like to know why it was felt necessary to include it in subsection (3).

Caroline Flint (Labour, Don Valley)

I thought that the hon. Gentleman was going to raise again the point about the magistrates courts. He is particularly interested in that because of his experience on the Committee that considered the Proceeds of Crime Bill.

The Attorney-General and others asked us to make the clause available to make better sense and use of effecting what we wanted from the 2002 Act. I am not sure that my answer will satisfy the hon. Gentleman—I am not sure that it satisfies me—but it might be possible to restrict ''any enactment'' in clause 89(3) to the relevant parts of the 2002 Act. If necessary, I shall seek further information.

Dominic Grieve (Conservative, Beaconsfield)

If I understand the Minister's reply correctly, she is suggesting that it would be possible to amend subsection (3) so that it is not quite so wide and sweeping. That is reassuring.

The rest of the debate is in Hansard.