Serious Crime Bill [Lords]

Public Bill Committee, 5 July 2007.

Clause 65

James Brokenshire (Conservative, Hornchurch)

When we adjourned, I was halfway through explaining that amendment No. 178 was tabled on the assumption that we will ultimately reach a resolution on the matters that we were discussing. The amendment is reasonably straightforward and sets out the Committee’s clear intention on how data protection issues will be addressed and the seriousness with which they are treated. I need say no more.

Vernon Coaker (Labour, Gedling)

Good afternoon, Mr. Benton. It is good to see you chairing our Committee again.

I ask the Committee to resist the amendment, which would increase the penalties in clause 65 for the clause 64 offence of making

“certain further disclosures of information”.

The existing maximum penalty of a two-year custodial sentence would be increased to four years.

Clauses 64 and 65 were included in the Bill in recognition of the fact that a specific additional safeguard is needed to protect against improper onward disclosure of Her Majesty’s Revenue and Customs information. That is to conform with the safeguards attached to HMRC information in other circumstances. Clause 64 allows for the same additional safeguards to be applied by order to public authorities’ information. I hope that it is evident that the penalty in clause 65 applies in a very narrow set of circumstances relating to wrongful onward disclosure of information shared by public authorities through a specified anti-fraud organisation. Currently, that applies only to HMRC information.

The maximum penalty of two years’ imprisonment is consistent with the maximum penalty for all other comparable data-sharing offences—for example, under section 19 of the Commissioners for Revenue and Customs Act 2005 and section 10 of the Official Secrets Act 1989. In addition, the Government have proposed an amendment to the Data Protection Act 1998 to include a maximum custodial penalty of two years for the offence of unlawfully obtaining personal data under section 55 of that Act; the measure is in the recently published Criminal Justice and Immigration Bill. The Government do not accept the case for doubling the penalty in the limited circumstances of clause 64.

James Brokenshire (Conservative, Hornchurch)

I hear what the Minister says. The amendment is in some ways different from the measures that he has highlighted. We tabled the amendment to make clear our view that the offence must be treated seriously, and to provide confidence in the way in which the system will operate. I do not intend to press the amendment to a Division; the point of tabling it was to set out for the Committee that breaches of data protection rules and the rules in clause 64 will be treated seriously and punished accordingly.

Vernon Coaker (Labour, Gedling)

I agree absolutely with the point that the hon. Gentleman makes.

James Brokenshire (Conservative, Hornchurch)

I welcome that assurance from the Minister because it is important that that message is sent out. I know that the Information Commissioner has made representations to the Home Office and other parts of the Government to emphasise that, and that responses have recently been given in relation to the issue, as the Minister mentioned.

In the light of what the Minister has said, and the changes that have taken place, I beg to ask leave to withdraw the amendment.

Clause 66

James Brokenshire (Conservative, Hornchurch)

The clause would insert additional wording in schedule 3 to the Data Protection Act 1998. The disclosure of sensitive information will be permitted if it is processed for the purpose of disclosure to an anti-fraud organisation of the kind that we debated this morning, or is processed by that person after being so disclosed—in other words, if it is then processed thereon. The question is: why is the clause needed? The list of sensitive personal data that are covered is broad in ambit, and it goes much further than might be perceived necessary for a simple anti-fraud purpose. It has provoked some concerns among various groups. Liberty’s briefing note says:

“We fear that this provision might instead be included because it would be too difficult in practice to separate out this kind of sensitive information from non-sensitive information which is contained in a single source of data that would be shared under these proposals.”

It adds:

“Administrative convenience is not a sufficient justification for the mass sharing of sensitive data.”

The Minister may say that the provision is required, and that it is an essential element in the fight against crime. However, it is wide ranging, and he must provide a justification for it, an assurance that it is not based on the administrative convenience that Liberty has highlighted, and a clearer understanding of the provision’s necessity, so that we might consider it accordingly.

Vernon Coaker (Labour, Gedling)

The clause inserts a new paragraph in schedule 3 to the Data Protection Act 1998 to facilitate the sharing of sensitive personal data, as the hon. Member for Hornchurch says, for the purpose of preventing fraud. The first data protection principle prohibits the processing of sensitive personal data, unless one of the conditions in schedule 3 to the Act is met. For example, paragraphs 7(1)(b) and 7(1)(c) of schedule 3 state that processing is necessary

“for the exercise of any functions conferred on any person by or under an enactment, or for the exercise of any functions of the Crown, a Minister of the Crown or a government department.”

The Secretary of State may by order add further conditions under schedule 3.

Although many public bodies will be able to rely on one of the current conditions in or applied under schedule 3, it is unlikely that the existing conditions would cover all cases of data sharing to prevent fraud. Therefore, the clause provides an additional condition that is tailored to anti-fraud data sharing and will facilitate such data sharing. It does not decrease the threshold of data protection which applies under the Data Protection Act.

I must stress that the provision is not a move to overturn the Data Protection Act or the principles that form its basis. The clause will not remove the need for data controllers either to comply with the data protection principles or to satisfy the conditions for an exemption from them, such as the exemption for crime prevention. The clause simply helps data controllers to comply with the additional requirement of the Act which relates to sensitive personal data when information is shared to prevent fraud. Although many bodies would already be able to comply with one of the existing conditions for sharing such information, the clause provides consistency throughout the full range of bodies that will share the information.

Section 2 of the Data Protection Act defines sensitive personal data; the definition includes information about political opinions, religious beliefs and racial origins of the data subject. It also includes information about the commission or alleged commission by the data subject of any offence. That part of the definition is relevant in this context. The definition also includes criminal proceedings for any offence committed or alleged to have been committed by the data subject. Again, that part of the definition is of obvious relevance in the context of the disclosure of information for the prevention of fraud. However, it is also possible that in disclosing information relating to offences or suspected offences, other sensitive personal data are necessarily disclosed. For example, information that a person was suspected of claiming sickness benefit for longer than he was entitled has the effect of disclosing information about his physical health, namely that he was initially entitled to such benefit. Physical or mental health or condition is also included in the definition of sensitive personal data.

Although many of the disclosures to an anti-fraud organisation will be covered by one or another of the existing conditions, not all will. That is why we are bringing forward the additional conditions. Under clause 66, all the information that is disclosed would have to be necessary for the prevention of fraud. In addition, the body sharing the information would have to do so either as a member of an anti-fraud organisation or in accordance with the arrangements made by such an organisation, so that data sharing will be subject to the rules of the anti-fraud organisation.

Furthermore, individuals will be informed that their data may be shared for the purpose of fraud prevention at the point that they provide the data. Individuals will be able to require the Information Commissioner to assess whether their data are being processed in compliance with the Data Protection Act. The commissioner may also investigate whether the data controller is complying with the Act on his own initiative. He will also be able to investigate using his normal powers and, where appropriate, he will be able to use an enforcement notice to require the data controller to take steps to comply with the Data Protection Act. With that explanation, I hope that the Committee will allow clause 66 to stand part of the Bill.

James Brokenshire (Conservative, Hornchurch)

I am grateful to the Minister for that detailed explanation of the need for clause 66. What he said has been helpful in setting out the context, and the reasons and rationale of why this measure would be needed practically, and he has also addressed the concerns that have been highlighted elsewhere. I am grateful to the Minister for that explanation.

Schedule 7

Jeremy Browne (Liberal Democrat, Taunton)

I beg to move amendment No. 14, in schedule 7, page 75, line 11, leave out ‘keep under’.

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss the following amendments: No. 15, in schedule 7, page 75, line 11, after ‘review’, insert ‘on an annual basis’.

No. 13, in schedule 7, page 75, line 24, at end insert—

‘(5) No information may be disclosed under Section 63 of the Serious Crime Act 2007 before the publication by the Commission of the code.’.

No. 241, in schedule 7, page 75, line 24, at end insert—

‘(5) The code shall not have effect until a draft has been laid before, and approved by a resolution of, both Houses of Parliament.’.

Jeremy Browne (Liberal Democrat, Taunton)

I am grateful to you, Mr. Benton, for giving me an opportunity to speak briefly about these amendments Nos. 14, 15 and 13, which stand in my name. During our proceedings this morning, we had a detailed conversation about clause 63; there is a lot of overlap and cross-over into the schedule, so I do not intend to repeat the points that I and others raised previously. However, I shall explain, for the benefit of members of the Committee the purpose of the amendments and the thinking behind them.

Amendments Nos. 14 and 15 would provide for an annual review of the code for data matching. My concern is that the time scales are too flexible and are insufficiently specific. The amendments, which amend the same sentence but reorder the wording, are designed to provide for an annual review. Amendment No. 13 relates to the point that I was discussing, along with others, with the right hon. and learned Member for Sleaford and North Hykeham, this morning. The amendment would require the code on data matching to be published before any information could be disclosed. I take the point that the right hon. and learned Gentleman made that, although that requirement would be more onerous than what is currently in the Bill, it would be better still to accept amendment No. 241 because that would provide for approval by Parliament.

My intention, subject to other contributions during the discussion on the schedule, is to press amendments Nos. 14 and 15 to a vote, because they address a specific different point about time scales, but not to press amendment No. 13 to a vote. I would be minded to support amendment No. 241 if that were pressed to a vote by other hon. Members.

Geoffrey Cox (Conservative, Torridge and West Devon)

I wonder if the hon. Gentleman might think about the expression “on an annual basis.” As I understand it, that means that the Commission might to do it only every 12 months, whereas it might want to look at the matter sooner if some event crops up. Should not the wording be “at least annually”?

Jeremy Browne (Liberal Democrat, Taunton)

That is a good point. My thinking may have been insufficiently demanding when I tabled the amendments and we may table further amendments at a later stage. I share the hon. and learned Gentleman’s view that requirements should be in place to ensure that the mechanisms are reviewed periodically in a way that is likely to provide greater safeguards. I accept that he may not regard “annually in all circumstances” as sufficient, but the clause as drafted does not specify a time scale, so it could stretch indefinitely into the future, which would be unsatisfactory.

James Brokenshire (Conservative, Hornchurch)

The schedule deals with data matching. I welcome the additional changes in schedule 7, especially the insertion of new section 32A(5) of the Audit Commission Act 1998, which states:

“A data matching exercise may not be used to identify patterns and trends in an individual’s characteristics”.

The Minister referred to that this morning. That is a welcome improvement as it defines the contrast between data matching and data mining, which was referred to at the start of our previous debate, which is very helpful.

However, concern remains about whether we are being taken down another track. It is important to keep the code of practice on data matching under review. I say to the hon. Member for Taunton that the ambit of language in proposed new section 32G(1) is already fairly broad; my interpretation is that the code will be under constant review that may be wider than the hon. Gentleman’s amendments propose.

I note that the hon. Gentleman will not press amendment No. 13 to a Division. My clear impression is that the clause refers to the data matching code rather than to the data sharing code: the two need to be kept separate as they are assessing different things. However, our argument that the code needs parliamentary approval is still relevant for the purposes of data sharing, which we debated this morning. We therefore tabled amendment No. 241, which provides that the code on data matching

“shall not have effect until a draft has been laid before, and approved by a resolution of, both Houses of Parliament.”

We may have rehearsed some of the arguments earlier, but I look forward to the Minister’s response to the amendments. It is important that there is some assurance that not only has there been consultation with the relevant persons, such as the Information Commissioner, but that there will be external and parliamentary scrutiny of the code.

As parliamentarians, we want to be able to say that we are satisfied that the code of practice provides the intended protections, so that the concern we have highlighted about the ambit of data matching in respect of the code of practice is adequately addressed. I will listen with interest to the Minister’s response to the amendment before deciding whether to press it to a Division.

Jeremy Wright (Conservative, Rugby and Kenilworth)

I rise briefly to support what my hon. Friend said about the amendment. I share his reservations about the amendments tabled by the hon. Member for Taunton as it is vital to have a code that can be amended as flexibly as possibly to deal with what may be a fast-changing situation. I attended a presentation by the National Fraud Initiative, which the Minister kindly arranged.—

Vernon Coaker (Labour, Gedling)

I thank the hon. Member for Hornchurch for the point that he made about proposed new section 32A(5) of the Audit Commission Act 1998. We want to ensure that our approach is conciliatory. I also thank the hon. and learned Member for Torridge and West Devon, who rightly pointed out to the hon. Member for Taunton that it is the flexibility to review the code that is important. That might be done more than once a year.

The hon. Member for Taunton has tabled two amendments that would have the cumulative effect of requiring the Audit Commission to review its code of data matching practice every year. To date, the national fraud initiative has been carried out only every other year. The new provisions already place a duty on the Audit Commission and other audit bodies using the powers to keep the code of data matching under review. In practice, that means that the code will be reviewed and updated before each round of data matching occurs, in order to take account of developments that have taken place over the previous two years.

Vernon Coaker (Labour, Gedling)

It is a bit like Wimbledon here—it is difficult to maintain one’s train of thought. We should have some sympathy for the competitors there.

On the amendments tabled by the hon. Member for Taunton, it does not follow that the code should automatically be reviewed every two years; it might be appropriate for it to be done more or less frequently. I think that that point has also been made by other members of the Committee.

The amendment tabled by the hon. Member for Arundel and South Downs (Nick Herbert), which was moved by the hon. Member for Hornchurch, would prevent the code of data matching from having effect until it was approved by both Houses of Parliament. We debated some of those issues this morning, and my contention is still the same in respect of the code of practice and the data sharing principles. My objection to this amendment is the same as my objection to the earlier one requiring the data sharing code to be approved by both Houses of Parliament before it is published. The Information Commissioner was specifically appointed to be the independent regulator responsible for monitoring compliance with the Data Protection Act. The Audit Commission will be required to consult him when preparing or revising the code, and to send a copy of the code to the Secretary of State, who will be under a duty to lay it before Parliament.

Given the arrangements that Parliament is in the process of putting in place, I wonder whether it is necessary, or right, for it to involve itself in approving the code. As I indicated earlier, such a step would duplicate the functions entrusted to the Information Commissioner by Parliament and encroach on his supervisory and regulatory remits. The Information Commissioner answers to Parliament and can, if he wishes to do so, report to the House if he is unhappy with the way in which powers are being used.

As I said earlier, if we ask Parliament to approve the code of practice, where will that leave all the existing codes, which have not been approved? The question follows, should Parliament be asked to approve all codes of practice as they come up for renewal? I am not sure that that would be an economic use of Parliament’s valuable time. I hope that my explanation has reassured the hon. Gentleman and that he will be willing to withdraw the amendment.

James Brokenshire (Conservative, Hornchurch)

We will reflect on the Minister’s comments on the ability of the Information Commissioner to report back to Parliament on the code of practice, and on whether that gives this place sufficient oversight to ensure that the protections that we would like to have in the code are properly maintained.

On the basis of what the Minister has said, I do not wish to press amendment No. 241 to the vote. The work of the Audit Commission on the national fraud initiative has been very effective, and I recognise that the powers are intended to bring that within a statutory framework. We shall reflect on the Minister’s reassurances, including those about the Information Commissioner, and consider whether the issue needs to be revisited on Report.

Jeremy Browne (Liberal Democrat, Taunton)

In light of the comments from both sides of the Committee room, I am not minded to press a vote on the amendment—not least because of the Minister’s reassurances. Although I am not averse to heroic one-man charges, I have, like the right hon. and learned Member for Sleaford and North Hykeham, no taste for—

Geoffrey Cox (Conservative, Torridge and West Devon)

Futile gestures.

Jeremy Browne (Liberal Democrat, Taunton)

Indeed. So I shall bow out. I beg to ask leave to withdraw the amendment.

Clause 68

James Brokenshire (Conservative, Hornchurch)

I beg to move amendment No. 199, in clause 68, page 37, line 41, at end insert—

‘(3A) The Serious Organised Crime and Police Act 2005 (c. 15) is amended as follows.

(3B) After section 7(6), insert—

“(6A) It shall be the duty of the Secretary of State to make a motion in the House of Commons in respect of the annual report laid under subsection (6) within three months of the date on which the report was laid.”

(3C) After section 7(7), insert—

“(7A) It shall be the duty of Scottish Ministers to make a motion in the Scottish Parliament in respect of the annual report laid under subsection (7) within three months of the date on which the report was laid.”’.

I turn now to a very different issue: the scrutiny of the Serious Organised Crime Agency in its enlarged and expanded form. The Bill would transfer the assets recovery functions of the Assets Recovery Agency to SOCA—an issue that I shall address during the stand part debate. SOCA was created just over a year ago, and drew together the National Crime Squad, the National Criminal Intelligence Service, the National High Tech Crime Unit and parts of Her Majesty’s Revenue and Customs, as well as parts of the immigration service. Its budget for the current financial year is £399 million of resource funding, plus £43 million of capital funding. Its status is that of an executive non-departmental public body, sponsored by, but operationally independent of, the Home Office.

It is understandable that the sensitive and intelligence-led nature of SOCA’s work makes it unable to provide complete information to the public on its operations. However, that does not mean that its effectiveness should not be subject to regular examination, scrutiny and oversight. The Opposition believe that the amendment would provide an important mechanism for Parliament to apply such scrutiny and would ensure that there would be a clear, direct and annual mechanism under which SOCA and its annual performance would be held to account, reviewed and debated by the House.

SOCA is an essential part of the structures that exist to address the continued threat to the country and to our constituents from serious organised crime. The importance of its work should not be understated, but in many ways that underlines the need for appropriate mechanisms of scrutiny. SOCA’s remit is harm reduction, which is a very broad concept that is difficult to measure and assess. It is all the more important, therefore, to enable Parliament to examine that role and function and to hold SOCA to account.

The concern about the checks and balances on SOCA’s operations has been brought into stark focus by recent comments from the Court of Appeal. In the case of UMBS Online Limited v. Serious Organised Crime Agency, the Court of Appeal held that SOCA had acted unlawfully in freezing payments to a company suspected of VAT fraud. Whatever the merits of that case, the reported comments of the Lords Justices of Appeal are potentially disturbing. They said:

“A feature of the way SOCA operates is that it does not condescend to detail either in the reasoning for its decision or in disclosing the facts upon which it relies in coming to that decision. This is not a very satisfactory position.”

Lord Justice Sedley added:

“In setting up the Serious Organised Crime Agency, the state has set out to create an Alsatia—a region of executive action free of judicial oversight.”

Those seem to be quite strong words from learned judges, and they are made even starker by the fact that Parliament itself does not have any direct oversight over the working of SOCA either. If such serious comments are being made about the operation of SOCA, that should give us cause to stop and think.

We also need to test and question SOCA on the performance information that it does provide. For example, questions have been raised about the robustness of information provided by the agency on the level of its drug seizures. Such seizures are an essential element of SOCA’s role and performance and the Conservatives welcomed the information about the volume of drugs seized when it was revealed in SOCA’s annual report. However, SOCA has refused to substantiate those figures, saying that it was not prepared to provide specific details of its ongoing work and that previous protocols for assessing drug seizures did not apply to it because it is a new and different organisation and that

“our reporting is, in consequence, different too.”

Frankly, that is not acceptable, particularly when we are considering extending the scope, responsibility and ambit of the work undertaken by SOCA. Of course, there may be, quite rightly, operational matters that need to be kept secret and certain areas of SOCA’s work do not need to be put into the public domain, because of their sensitive nature and the need to protect the public. However, I do not think that that necessarily means that there should not be some form of direct scrutiny of SOCA’s reports and the way that it operates.

In evidence to the Public Accounts Committee on 7 March 2007 about the transfer of the assets recovery functions to SOCA, Sir John Bourn, the Comptroller and Auditor General, was asked whether SOCA would have the financial systems in place to assess whether the costs of those functions were greater than or less than the assets that it had recovered. Sir John said:

“It should have a proper system of management accounts which will provide that information and we shall see that it does have.”

Can the Minister indicate whether other measures are currently being undertaken or will be undertaken of the other functions of SOCA, so that the reporting of those other aspects of its work can be assessed in the same way as the Comptroller and Auditor General proposed that its assets recovery functions will be assessed?

As SOCA has been in operation for just over a year, it would be premature to pass any comments on its effectiveness. There are positive indications in terms of improved international co-operation and drug seizures. On the downside, SOCA has prosecuted fewer cases in the UK courts than its predecessor and missed targets on seizing criminal assets. There have also been criticisms of its bureaucracy.

It is vital that SOCA learns the right lessons during this early period and develops its operational capacity to disrupt and put behind bars those involved in serious organised crime, but in doing so it must also withstand scrutiny and examination. We believe that the mechanism of providing for a motion to be laid both in Parliament and in the Scottish Parliament within three months of the laying of SOCA’s annual report would be an important means of offering that oversight. We believe that such a mechanism would also help to strengthen the position of SOCA in its essential fight against those who wish to harm the interests of this country and damage the lives of our constituents.

Geoffrey Cox (Conservative, Torridge and West Devon)

I rise to support my hon. Friend’s amendment. We are here creating an agency with immense powers; even Government Members must acknowledge that. Part of the debate in this Committee over the last few days and weeks has been about whether or not those vast powers that are being entrusted to this agency are right, or whether they are unprecedented and unwise. However, on any view, the Ministers have not disguised the fact that we are talking about large powers.

It is an astonishing thing when a High Court judge should say what was said in the case of UMBS Online Limited v. Serious Organised Crime Agency, the case that my hon. Friend referred to. It means that there is grave reservation throughout the judiciary about the levels of accountability of SOCA. I say to the Minister that, if it is true that the current Government are inclined to extend the functions of this House in the monitoring and supervision of democracy in this country, that democratic accountability ought to extend to such agencies, which are entrusted and empowered to take away the liberties of individual citizens, on the balance of probabilities and on affidavit evidence without trial. The mechanism proposed by my hon. Friend is reasonable, measured and subject to all the safeguards of this House to ensure that only proper decisions are taken. I urge the Minister and other Government Members to think seriously about it.

Vernon Coaker (Labour, Gedling)

I thank the hon. Member for Hornchurch for his warm remarks about the creation of SOCA and the important work that it does, notwithstanding the points about accountability that he went on to make. It is important that we all place on the record our belief that SOCA is a vital part of our law enforcement, which has made an impact on the tackling of serious and organised crime. It is making a significant difference. I appreciated the hon. Gentleman’s remarks.

Amendment No. 199 would prompt debates in the UK and Scottish Parliaments on the Serious Organised Crime Agency’s annual reports. In principle, I have no difficulty with the idea of such a debate in the UK Parliament, and it is always open to Members of this House to initiate one. I question whether that approach would be proportionate as a matter of annual routine, however. The accountability that the hon. Gentleman seeks is already secured by less heavy means. As he said, SOCA is an Executive non-departmental public body that is funded principally by the Home Office and is accordingly accountable to the Home Secretary in Parliament. The mechanisms to ensure that accountability are set out in existing legislation that was agreed only two years ago.

Parliament is already in a position to raise questions about the work of SOCA—it frequently does so, as I know from answering them—through Home Office Ministers, whether in relation to its annual reports or not. Other parliamentary mechanisms are available too, such as the Home Affairs Committee, which can conduct inquiries. For the Committee’s information, I should like to point out that the chair and the director general of SOCA met the Chairman of the Home Affairs Committee last month. They discussed the possible scrutiny by that Committee of SOCA’s work this autumn. The chair and the director general of SOCA were keen for such an inquiry to take place and keen to give evidence to the Committee. The current reporting arrangements for SOCA are broadly in line with those for similar organisations. I do not believe that the imposition of additional requirements that single out the agency for special treatment is justified.

The chairman and the director general of SOCA are happy to appear before other parliamentary Committees and have done so. In the early days of the agency, they had an introductory meeting with MPs. They have offered to come to speak to members of this Committee about SOCA’s work, serious crime prevention orders and other matters. They will do so before Report, should hon. Members wish to attend. The Government believe that the current arrangements for scrutinising SOCA’s work are adequate. The amendment would go beyond what is required.

We have discussed the second limb of the amendment with our colleagues in the Scottish Executive. They also believe that it would impose a requirement that goes further than necessary and further than the equivalent arrangements for similar organisations in Scotland, such as the Scottish Crime and Drug Enforcement Agency.

Geoffrey Cox (Conservative, Torridge and West Devon)

Does not the Minister recognise that a Lord Justice of Appeal has said in court that the agency is an accountability-free zone, and that there are real problems with the way in which it will be scrutinised? The mechanisms that the Minister is talking about are not adequate for the task of scrutiny. That is one of the reasons why the Government are proposing new solutions to bring about the better scrutiny of state institutions. Surely the hon. Gentleman must recognise the pronouncements of the Court of Appeal.

Vernon Coaker (Labour, Gedling)

I recognise what the hon. Gentleman is saying. I would not wish to decry in any sense the importance of what any member of the judiciary or others say about SOCA. The only point that I am making is that it is open for any Member of Parliament to ask questions about it; it is open for there to be Adjournment debates and it is open for all sorts of parliamentary scrutiny to take place. I say to him and the hon. Member for Hornchurch that I believe parliamentary scrutiny of SOCA is available. It has shown itself willing to discuss matters with parliamentary Committees and Members of Parliament and as such I see the amendment as unnecessary.

James Brokenshire (Conservative, Hornchurch)

I am somewhat underwhelmed by the Minister’s response to the amendment. It is a serious issue in respect of the assessment and scrutiny of SOCA, and public and more general assurances about its work. In no way do I undermine SOCA’s willingness to discuss matters with members of the Committee or to make itself available to any subsequent inquiry that the Home Affairs Committee may undertake. I have no reasons to doubt the bona fides of its officers. Indeed, a lot of them are working hard to ensure that the best interests of the country are protected. However, that does not mean that there should not be robust mechanisms for scrutiny.

I hear what the Minister has said about what may be available, but given the importance of the organisation and the increase in its role as a consequence of the Bill, it is appropriate to stop, consider and reflect—notwithstanding the fact that the House may have established SOCA and applied the relevant mechanisms for the provision of reports two years ago. Given the changing role and a time of reflection, it does not mean necessarily that we should not re-examine matters, particularly when some surprisingly strident quotes about judicial oversight have come from some quite senior judges.

At the time when the Prime Minister is saying that he would like to see greater openness of Government, we should be strengthening the role of Parliament in its examination and scrutiny of the Government. The provision would be a good indication of that intent and would also strengthen and improve the operations of SOCA. I am disappointed that the Minister is not willing to give some ground in relation to that and, on that basis, I wish to test the Committee’s opinion on the amendment.

James Brokenshire (Conservative, Hornchurch)

We now move on to the broader issues arising from the clause and what is effectively the final death-knell for the Assets Recovery Agency. The Chairman of the Public Accounts Committee recently highlighted the weaknesses of the agency when he said:

“To sum up, you have spent £65 million and you have recovered £23 million. You have no complete record of the cases referred to you. You have worked on over 700 cases and managed to recover assets in a mere 52, 90% of financial investigators you have trained have not completed the courses that they need to.”

That may be a very harsh judgment, but the Assets Recovery Agency has not lived up to expectations, and it has fallen short of what was required of it. That is why, on 11 January, the Government were forced to announce the transfer of its functions to SOCA and the National Policing Improvement Agency, which this Bill is intended to give effect to.

The question that remains—I think it important to discuss this in the context of this clause—is whether the successor bodies will do a better job. We sincerely hope that they do because that is in the best interests of this country, but it is important that the lessons of the past are not overlooked.

Chris Ruane (Labour, Vale of Clwyd)

The hon. Gentleman poses the question, “Will they do a better job?” I can onfirm that they are already doing a better job. In my constituency, the North Wales police, in conjunction with the agency, took £7 million from one criminal alone.

James Brokenshire (Conservative, Hornchurch)

I am obviously delighted to hear of that particular example because it is important that we recover assets from criminals and deprive them of their ill-gotten gains. I welcome the hon. Gentleman’s intervention because it highlights the importance of assets recovery work. Obviously, we are discussing the transfer of ARA’s current functions to SOCA and the National Policing Improvement Agency. In that context, there will be a transfer of powers, which is outlined in the Bill.

I would like to flag up the concerns that were expressed about the ARA in a National Audit Office report. The report was critical notwithstanding the individual successes that the hon. Gentleman has highlighted. The NAO pointed out that despite the agency’s best efforts to encourage bodies to refer cases to it, four police forces and most local authorities and trading standards offices had yet to refer a case to it.

A number of criticisms were levelled at the agency, including poor case management information, high staff turnover and the fact that the staff did not record their time so that the agency could not measure the resources deployed on each case.

It is important that we learn from the criticisms rightly identified by the National Audit Office and that the Minister can give us some assurance that they have been considered and will be addressed when the successor bodies take over the roles and functions. It is also important to know what undertakings the NAO recommended for the future. The NAO said that its recommendations equally applied to the successor bodies because by the time its report came out, it was recognised that the ARA’s roles and duties were being transferred.

Chris Ruane (Labour, Vale of Clwyd)

The hon. Gentleman has picked out aspects of the NAO report that highlight the negative aspects of the agency. Were there any positive aspects?

James Brokenshire (Conservative, Hornchurch)

It is a fair point to make and I am very happy to provide a copy of the NAO report. I am not seeking to portray the report too negatively in terms of its balance. Some serious criticisms were levied, but as I said, I am not denigrating the individual successes achieved for the hon. Gentleman’s constituents and mine. My point in terms of analysing an organisation in its entirety is that the criticisms in the report, which are on the public record, were made to ensure that we can improve—that when we transfer the rights, duties and responsibilities, the new agencies will learn constructively from the criticisms. That will ensure that we can strengthen our fight against organised criminals and disrupt their activity by seeking to reclaim assets from them.

The NAO report made some specific recommendations. Can the Minister confirm either that the Assets Recovery Agency has acted on those recommendations or that steps are being taken to ensure that the successor bodies to whom its responsibilities and activities will be transferred pursuant to the Bill will act on them, and that plans will be implemented to address the structural and other issues highlighted by the NAO to ensure that lessons are learned and previous weaknesses are addressed?

Jeremy Wright (Conservative, Rugby and Kenilworth)

I rise to support my hon. Friend’s comments and to raise another matter, which I mentioned on Second Reading in an intervention on the Minister’s colleague. Notwithstanding the points made by the hon. Member for Vale of Clwyd, it is clear that the Assets Recovery Agency has not been as successful as we all agree it should have been. One of the reasons is that the agency’s applications in court for recovery of funds have been delayed, causing the precedents necessary to allow it to recover money more regularly and swiftly not to be set on the face of the law reports.

The delay is due at least in part—I say this with some concern, given the presence of my right hon. and learned Friend the Member for Sleaford and North Hykeham and my hon. and learned Friend the Member for Torridge and West Devon; I declare an interest myself as a non-practising member of the Bar—to lawyers’ use of the Human Rights Act to delay the processes so that the Assets Recovery Agency is not as efficient as it should be.

Nothing that I can see in the transferral of responsibilities from the Assets Recovery Agency to SOCA will address any of those problems that seem to be at the root of the Assets Recovery Agency’s failure. I accept that you would not wish us to stray beyond the confines of the Bill, Mr. Benton, but can the Minister discuss any of the wider causes for the inadequate results of the Assets Recovery Agency and whether the Bill is likely to address them?

Vernon Coaker (Labour, Gedling)

Let me say at the beginning of this clause stand part debate that improving asset recovery through the civil route—I shall not stray, Mr. Benton, into the Proceeds of Crime Act 2002, the criminal route and confiscation orders—is crucial work for all of us. That so many criminals are seen to gain from their activity, in such a way that people are amazed that we cannot do more to take away their ill-gotten gains, is something that unites us all.

Nothing undermines our communities more than some young person seeing people who are obviously living beyond their means flaunting their wealth. Whether improvements are made through the Proceeds of Crime Act 2002—the criminal route—or through the civil route, we simply must do better. We must show people that getting up in the morning, working hard at school, getting qualifications and then going to work, with the values that we all appreciate and want for ourselves, our communities and our children, should be seen to be at the forefront of what we want to achieve. I know that there is no disagreement in the Committee on that, but it is important to assert the fact.

Chris Ruane (Labour, Vale of Clwyd)

I support my hon. Friend in what he says about the impact of catching criminals and taking the money from them. The impact in the community will be tremendous. Does he think that there would be merit in the police being allowed to keep a larger proportion of the money that is confiscated and ring-fencing it for anti-crime measures, whether for closed circuit television, or anti-graffiti or antisocial behaviour measures within the community itself, in order to show not only that crime does not pay but that the community can benefit?

Joe Benton (Labour, Bootle)

Order. That has little to do with clause 68.

Vernon Coaker (Labour, Gedling)

It was an interesting point. As always, we carefully consider all such matters.

After those introductory remarks, Mr. Benton—I appreciate your allowing me to make them—I turn to some specific points. In answer to the hon. Member for Rugby and Kenilworth, there have been problems with the judicial process. However, the Assets Recovery Agency has been successful; Jane Earl and or Alan McQuillan say that their work has changed the way in which the judicial and the legislative processes operate. There have been problems and hold-ups, but to a certain extent the agency has been trailblazing a route that others should be able to follow.

The hon. Member for Hornchurch asked about the National Audit Office report. The director of the Assets Recovery Agency is actively addressing the management issues identified in that report—the hon. Gentleman wanted reassurance on that point—and he agrees that UK-wide management was needed. A new system is already in place for case management, but he recognises that it needs to be improved. The agency is also developing a formal management review of cases that will include a timetable for each stage; it will also hold people to account. That answer may deal also with the point raised by the hon. Member for Rugby and Kenilworth. Management systems will be tightened up.

My hon. Friend the Member for Vale of Clwyd made an important point when he intervened on the hon. Member for Hornchurch. He asked whether positives were to be found in the NAO report as well as negatives. I accept that there are negatives, but the Assets Recovery Agency is dealing with them. My hon. Friend will be interested to hear that the NAO report highlighted a number of positives. The agency has established important case law in respect of human rights. Again, that goes to the heart of the question put by the hon. Member for Rugby and Kenilworth; the agency has trailblazed a route through the problems, and we hope that others can follow.

The agency has been successful in freezing assets and issuing tax assessments. As for enforcement, more than 90 per cent. of awards have been successfully recovered. The agency is also delivering training courses and has received positive feedback from those who have attended. As well as having had difficulties, the Assets Recovery Agency has had some positive results. My hon. Friend made an excellent point when asking about that.

Asset recovery is a vital weapon in tackling serious and organised crime, as such crime is driven by profit. Removing the profit is an effective lever in making communities safer. The Assets Recovery Agency is successfully taking forward the new civil recovery powers under the Proceeds of Crime Act 2002, and although it has taken a long time, it has seen off every legal challenge. That is a major success, which demonstrates the robust nature of the legislation. The agency has also succeeded in disrupting criminal activity through the freezing of assets, with some notable successes in the recovery of assets.

After a slow start in the first years, the agency’s performance in recovering assets has improved significantly, with £15.9 million recovered in the last financial year. We want to build on that success. The agency is a relatively small organisation and was, as hon. Members may remember, set up before the Serious Organised Crime Agency came into existence. Now that SOCA is up and running, it makes sense to bring the key skills, expertise and resources of both bodies together in a larger organisation. It is important to note that many of the Assets Recovery Agency’s clients have made their money from serious organised crime, so bringing the agency’s main business together with SOCA will enable those engaged in civil recovery to benefit from the work that SOCA is doing to develop a greater understanding of how serious crime operates.

There are close links between the core business of the Assets Recovery Agency and that of the Serious Organised Crime Agency and operational advantages in bringing them together. The clause and schedule 8 transfer the Assets Recovery Agency’s civil recovery functions to SOCA. However, the civil recovery powers will not be transferred to SOCA alone. The Government want to maximise the use of these powers and believe that there are merits in sharing them across a number of bodies.

Prosecuting bodies have now acquired valuable skills and experience in assets recovery. Where prosecutors have decided that a case does not pass their tests for prosecution and therefore it is not possible to obtain a confiscation order, it may be more efficient for them to pursue civil recovery action than pass the work to SOCA. The clause provides for both SOCA and the main prosecuting bodies to have civil recovery powers.

Nothing in the new proposals will detract from our efforts in tackling organised crime in England and Wales and Northern Ireland through the recovery of assets. The proposals will improve and enhance our efforts. In recognition of the high profile, public confidence and success achieved by the Assets Recovery Agency in Northern Ireland in tackling organised crime and dealing with organised criminals, SOCA will have a designated officer responsible for assets recovery work in Northern Ireland. I should like to say again, to reassure people in Northern Ireland, there will be no diminution in the resources available for assets recovery work there.

The National Policing Improvement Agency is a new body that will support police forces in improving the way they work across many areas of policing. The Assets Recovery Agency, SOCA and the Association of Chief Police Officers agree that the current training and accreditation function should move to the NPIA and the clause transfers that function to it. Although it is a police body, that agency’s commitment to financial investigation will include training and accreditation for non-police staff and for financial investigators outside England and Wales.

The Assets Recovery Agency has many skilled and experienced staff who will continue to make a valuable contribution in their new organisation. The clause and schedule 9 also provide for the staff of the agency to transfer to SOCA or to the National Policing Improvement Agency as appropriate.

In conclusion, I should like to put on the record once again my appreciation of the work that Jane Earl did in establishing the Assets Recovery Agency, for the work that Alan McQuillan has done in taking over her efforts in the agency and to all the people in the Assets Recovery Agency who have worked so hard in this new area of business, which will help all of us ensure that those who try to profit from crime will not do so.

Schedule 8

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I beg to move amendment No. 168, in schedule 8, page 96, line 38, leave out paragraph 100.

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss the following amendments: No. 164, in clause 79, page 43, line 25, at end insert—

‘(2A) No order made by the Secretary of State shall amend or repeal any provision of another Act.’.

No. 165, in clause 79, page 43, line 26, leave out ‘or paragraph 100 of Schedule 8’.

No. 163, in clause 79, page 43, line 27, leave out from ‘8,’ to end of line 28 and insert

‘except under the super-affirmative resolution procedure as set out in section 18 of the Legislative and Regulatory Reform Act 2006 (c. 51).’.

No. 166, in clause 79, page 43, line 29, leave out subsections (4) and (5).

No. 162, in clause 80, page 44, line 6, leave out subsection (2).

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Before I speak to the amendments, may I thank the Public Bill Office for its assistance in drafting them? This is the last group of amendments on which I shall have a substantial voice. The staff of the office drafted a great many amendments, and the fact that they have appeared on the amendment paper in order and relatively comprehensible is to their credit, and I am grateful for that.

The amendments have three purposes. First, amendment No. 168 would delete the provision that enables the Secretary of State to

“repeal Part 6 of the Proceeds of Crime Act 2002”

and to make a consequential change to the statues. Secondly, amendments Nos. 164 and 166 would remove the general power to repeal and amend legislation outside the Bill. Thirdly and lastly, the amendments would incorporate the concept of the super-affirmative resolution wherever the affirmative procedure is being adopted.

Amendment No. 168 is narrow in compass. I am against Secretaries of State taking to themselves powers by affirmative resolution to amend the language of or to repeal parts of other statutes. That should be done by primary legislation, in the passage of which one would have the opportunity to examine in much greater detail the proposals than is possible under the affirmative procedure.

On the second purpose, the more general point is that in the Bill, and in clause 79 in particular, the Government are taking a much more general power to repeal legislation by affirmative resolution. I find that difficult to justify, because affirmative resolutions are not amendable. Affirmative resolutions are presented to the House, which must accept them either wholly or not at all following a short debate lasting—normally—an hour and a half. In principle, that does not seem to be a good way of handling legislation. Indeed, the House recognised that by passing the Legislative and Regulatory Reform Act 2006 and the super-affirmative procedure measures.

Super-affirmative procedure broadly means that the House has the opportunity to debate an early draft of resolutions before they are laid before it. That way, Members can express a view on the draft before the resolution is made. That enables them to say whether they approve of the draft before it is laid, and it gives the Government the ability to modify the draft to reflect criticism. That is an improvement on the normal affirmative procedure.

My view has always been that we ought to have a mechanism for amending affirmative resolutions when they are brought before the House, so that we are not driven either to accepting or rejecting a law, but that is not the procedure at the moment. The amendments would incorporate the concept that we should always use the super-affirmative procedure for the affirmative resolutions that will be brought about by the Bill. That is probably the best of the available options.

I am sure that other hon. Members will say more on the matter, but to summarise, I very much dislike the ministerial habit of taking powers unto themselves. That also applies to Conservative Ministers in Administrations of which I was a member; no doubt I did it myself—[Interruption.] The Minister is smirking. Of course, I fear that he has a list of the affirmative resolutions that I brought to the House in a previous incarnation. In fact, I am against the habit. I become more libertarian and liberal as I get older, although I am not a member of the Liberal Democrats who, by the way, have no presence in the room at the moment.

We should be slow to give Ministers the ability to change other legislation with powers conferred in the Bill. If we are going to give such powers, it must be done by affirmative resolution, but that itself is pretty narrow, therefore given where we are the super-affirmative procedure is the best we can do. Those are my reasons for tabling the amendments.

James Brokenshire (Conservative, Hornchurch)

I rise briefly to speak to the amendments tabled by my right hon. and learned Friend who, in his customary way, set out the legal basis to justify and underpin his proposals in a clear, concise and effective manner.

There is an ongoing general debate about the role of Parliament and the way in which the Executive seek to take additional powers to themselves by making an order, and the clause is another example of how further powers are being taken away from Parliament. The Prime Minister has indicated that he wants to strengthen the role of Parliament, and in that spirit we hope that that historical approach may be changed, although I have doubts about whether that will actually happen. The points that my right hon. and learned Friend made are effective and I will listen with great interest to how the Minister responds to them.

Vernon Coaker (Labour, Gedling)

Given the charming way in which the right hon. and learned Member for Sleaford and North Hykeham spoke to the amendment, I am loath to speak against it, but that is what I am going to do. He was honest enough to say that if he were in my position, he would propose similar order-making powers.

I refer members of the Committee to the House of Lords Delegated Powers and Regulatory Reform Committee, which considers the use of order-making powers. We changed one or two of the powers in parts of the Bill to take account of the points made by that Committee in its report, so that the order-making powers in the Bill are now consistent with the views expressed in that report.

Amendment No. 164 seeks to ensure that the Secretary of State cannot by order amend or repeal any provision of another Act, and amendment No. 162 would have the same effect. The Secretary of State will need to be able to make such amendments in order to make the Bill work effectively. Amendment No. 166 is consequential to amendments Nos. 162 and 164, because if the Secretary of State’s power to amend or repeal other enactments is removed, clause 79(4) and (5) are no longer necessary. However, I urge the Committee to reject the amendments as those subsections are not there for any reason other than to make this legislation work in practice.

Amendment No. 163 would mean that the order-making powers listed in clause 79(3) were subject to the super-affirmative procedure. I must resist that amendment. We set the parliamentary procedure in relation to the order-making powers at what we believe to be the appropriate level. As I said, in its report, the Delegated Powers and Regulatory Reform Committee agreed that the levels set were appropriate.

Amendments Nos. 165 and 168 relate to the Assets Recovery Agency and its merger with the Serious Organised Crime Agency. This includes the ability to raise a tax assessment against the suspected proceeds of crime. As part of the transferral of that function, the Bill provides for the ability to repeal that Revenue function so that SOCA will no longer have it as a function. That is because the use of tax powers against the proceeds of crime is subject to a review involving SOCA, Her Majesty’s Revenue and Customs and the Home Office. The review may conclude that the ability to raise tax assessment against unsourced but suspected criminal proceeds is best performed by HMRC and not SOCA. The function would therefore need to be removed from SOCA and given to HMRC. Alternatively it may conclude that the provisions are not required, as others are sufficient to recover the proceeds of crime. Again, that would require the repeal of the SOCA function.

I hope that I have explained the basis of the provision. I invite the right hon. and learned Member for Sleaford and North Hykeham to withdraw his amendment.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I seek your guidance, Mr. Benton. I suspect that the answer will be, “No”, but you never know, I might be wrong. My preference would be to move amendment No. 163 and no other in the group, but I suspect that, as amendment No. 168 is first in the list, I cannot move amendment No. 163.

Joe Benton (Labour, Bootle)

It will be in order to move amendment No. 163 at the appropriate stage.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

May I respectfully ask when that stage will be?

Joe Benton (Labour, Bootle)

I shall enlighten you on that in a second.

Vernon Coaker (Labour, Gedling)

On a point of order, Mr. Benton. Will you enlighten me as well?

Joe Benton (Labour, Bootle)

I understand that amendment No. 163 will be dealt with when we reach clause 79. We shall mark it to be moved formally then. However, that is conditional on your withdrawing amendment No. 168, Mr. Hogg.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I am very grateful. In those circumstances, I shall not press amendment No. 168. I recognise that I could be said to be guilty of hypocrisy in this matter, in that I am sure that in the past I have moved order-making powers, and probably frequently too. Nevertheless, I do not like them, and I do not suppose I shall ever like them. I certainly do not like them now. If we are going to have them, we have to decide how best to protect the liberty of the subject and enhance parliamentary control. Given where we are, I think that the super-affirmative procedure is probably a good thing in most cases. I shall therefore move amendment No. 163 when I can, in order to assert that proposition. That being so, I beg to ask leave to withdraw amendment No. 168.

Vernon Coaker (Labour, Gedling)

I beg to move amendment No. 202, in schedule 8, page 97, line 14, leave out from beginning to ‘for’ and insert—

‘(1) Section 352 (search and seizure warrants) is amended as follows.

(2) In subsection (5)(b)’.

Joe Benton (Labour, Bootle)

With this it will be convenient to consider Government amendments Nos. 203 to 222 and 227 to 238.

Vernon Coaker (Labour, Gedling)

These are minor and technical amendments and I commend them to the Committee.