Policing and Crime Bill

Public Bill Committee, 24 February 2009.

Hugh Bayley (Labour, City of York)

I welcome Committee members back following the recess.

Vernon Coaker (Labour, Gedling)

I beg to move,

That the Order of the Committee of 27 January be amended as follows—

(a) in paragraph (1)(h), after “9.00 am” insert “and 1.00 pm”.

(b) in paragraph (4) leave out “10.25 am” and insert “4.00 pm”.

Good morning to you, Mr. Bayley, and to the Committee. I hope that everyone had a reasonable recess.

I want to put on record my thanks to the hon. Member for West Chelmsford, the Opposition Front Bench and the Liberal Front Bench for their co-operation on the programming and running of the Committee. It would be remiss, given our experiences on such Committees, not to put that on record.

Clause 36

Vernon Coaker (Labour, Gedling)

I beg to move amendment 156, in clause 36, page 27, line 27, leave out

‘property held by the person’

and insert ‘realisable property’.

Hugh Bayley (Labour, City of York)

With this it will be convenient to discuss Government amendments 157 to 162, 167 to 171, 173 to 177, 179 to 181, 186 to 190, 205 to 209 and 334.

Vernon Coaker (Labour, Gedling)

Amendments 156 to 162, 167 to 171, 173 to 177, 179 to 181, 186 to 190 and 205 to 209 will be to clauses 36 to 38, which relate to confiscation under the Proceeds of Crime Act 2002. I explained the policy that the amendments address at an earlier sitting so I will be reasonably brief.

The amendments will expand the new powers of search and seizure of property to include other persons holding gifts made by suspects as well as property held by the suspect. Such property, known as tainted gifts, is already included in the confiscation provisions of the 2002 Act. The goal is to prevent a defendant from disposing of their property to avoid confiscation. Law enforcement officers requested the extension of the powers to other persons holding tainted gifts to close a potentially fatal loophole whereby a suspect merely giving property to family members and friends could undermine the viability of the new powers.

Amendment 173 will repeal the existing seizure power in the confiscation provisions. Section 45 of the 2002 Act and the equivalent provisions for Scotland and Northern Ireland provide that property subject to a restraint order may be seized only to prevent its removal from the country. Clauses 36 to 38 provide for more extensive search and seizure powers, which will subsume the existing powers. Their continued existence is therefore not justified and they will be repealed.

Amendments 168 to 171, 187 to 190 and 206 to 209 are minor guiding amendments. The new powers provide for continued detention once the property has been seized. Initially, an officer may detain seized property for 48 hours. If there is no restraint order or if the officer decides not to apply for one, he must apply for a detention order from the magistrates court.

Amendments 169 to 171, 188 to 190 and 207 to 209 provide that any person affected by a detention order can apply for the discharge or variation of it. They may also appeal against any decision made on the order. The persons affected could be the defendant, a third party or the law enforcement officer who applied for the detention order. I know that the hon. Member for Hornchurch, in some of the amendments that he has tabled, is concerned by the level of judicial oversight, rather than the principle behind the Bill. The hon. Member for Chesterfield is also concerned about that, and we will discuss that with other amendments. I just wanted to highlight that particular section as I will mention it in regard to the ability to vary orders, to appeal against orders and so on, but that is a debate for later amendments.

Government amendments 168, 187 and 206 explicitly provide that a magistrates court cannot advise the continued extension of what is known and defined in the Bill as “exempt property”. “Exempt property” is defined in new section 47C(4) and includes items necessary for a person’s personal use in his or her business location or employment. It also includes:

“clothing, bedding, furniture, household equipment, provisions or other things as are necessary for satisfying the basic domestic needs of the defendant and the defendant’s family.”

Upon seizure, the officer can seize any property held by the defendant, or by the recipient of a tainted gift from the defendant, except cash and exempt property. Exempt property therefore, should not be seized, but it is an important additional safeguard that the court takes account of this issue. There is another protection to ensure that the seizure powers are being used proportionately and correctly. It is obviously important that seizure is not used to deprive a person of their ability to live. There are similar exemptions in respect to bailiffs and insolvency law. So, there are established precedents that we have tried to use with respect to this particular measure. The same amendment is made for the three UK jurisdictions, which is why we get triple the number.

Government amendment 344, which is consequential to the Proceeds of Crime Act 2002, merely makes repeals to the Act consequential and necessary due to the other amendments that I have spoken to in this group.

James Brokenshire (Conservative, Hornchurch)

I am grateful to the Minister for that explanation of the tranche of Government amendments in this group. I hear what he says about judicial oversight and, clearly, that is an issue that we will debate in further detail in other parts of the Bill.

My principal question for the Minister in respect to this group of amendments regards the extension of the ambit of the search and seizure powers by the creation of the new concept of “realisable property”. Can he explain how that definition has been arrived at, and how broad it is intended to be? I hear what he has said about the arguments that have been put to him, by police and other law enforcement agencies, on the need to extend those powers and on the way this has been drawn up, but I would like to understand more clearly how broad the definition of “realisable property” is, because it seems to be very wide in its ambit. Does this provision extend the law significantly, and how will the new clause be applied? What is the actual basis of this provision, and how broad is the definition of “realisable property”, as envisaged by the Government amendments and their practical application?

Vernon Coaker (Labour, Gedling)

Let us re-establish what we are trying to do. We are trying to prevent somebody who a law enforcement officer—essentially a police constable—believes is trying to get rid of property to avoid that property being restrained or detained, so that it can be realised in the future when the confiscation order is made.

“Realisable property” is not a new concept; it is included in the Proceeds of Crime Act. The easier way to define “realisable property” is to look at what it is not realisable property, and at what the court would say could not be used for recovering the proceeds of crime. We have therefore tried to define exempt property and say which things cannot, by any stretch of the imagination, be considered to be realisable property. So we are doing it the other way round. Although the concept of “realisable property” is readily understood and has been used by the courts for a number of years, we are coming at it from the other direction by saying what sort of property cannot be used. We have therefore tried to define exempt property.

One of the problems of creating a list is that, as soon as it is completed, something will arise that is not on it. We shall see this later with some of the other amendments that the hon. Gentleman has tabled. The amendment relating to gangs, for example, tries to define “gang-related” activity. We have tried to tell the courts what exempt property is—namely, the things that we expect the court not to treat as realisable property. We then leave it to the court to determine what it means. Our approach has been to look at this completely the other way around from the hon. Gentleman’s point of view. I hope that that explanation helps him.

Simon Burns (Conservative, West Chelmsford)

On a point of order, Mr. Bayley. I am sorry to interrupt, but would it be convenient for you and the Committee if these amendments were grouped together and taken in one fell swoop?

Hugh Bayley (Labour, City of York)

Thank you, Mr. Burns. If the Committee is happy I shall ask the Minister to move the two remaining amendments formally and then the rest can be dealt with.

Clause 37

Clause 38

James Brokenshire (Conservative, Hornchurch)

I beg to move amendment 108, in clause 36, page 30, line 42, leave out from ‘a’ to end of line 43 and insert ‘the Crown Court’.

Hugh Bayley (Labour, City of York)

With this it will be convenient to discuss the following: amendment 109, in clause 36, page 30, line 44, leave out from beginning to end of line 10 on page 31.

Amendment 110, in clause 36, page 31, line 15, leave out ‘a justice of the peace’ and insert ‘the Crown Court’.

Amendment 111, in clause 36, page 31, line 21, leave out ‘a justice of the peace’ and insert ‘the Crown Court’.

Amendment 112, in clause 36, page 31, line 27, leave out ‘a justice of the peace’ and insert ‘the Crown Court’.

Amendment 123, in clause 36, page 34, line 37, leave out paragraph (b).

James Brokenshire (Conservative, Hornchurch)

We come to an issue to which the Minister has alluded: appropriate judicial oversight. The principal point with regard to the significant powers set out in the Bill is which is the right court to consider the hearings for extending the period of seizure. There are two factors to consider. First, there is the seriousness of the power and, therefore, the seniority of the court that should decide—a relevant factor in its own right. Secondly, there is the complex nature of the issues at stake, and I think that complex areas of law are likely to arise when the powers envisaged in the Bill are used.

On the point about seriousness, cases involving other existing powers for which a court authorisation is required are currently heard by the Crown court, so we believe that that precedent should be adhered to in this context. I am sure that the Minister will pray in aid the need for speed, the availability of judges and the fact that at times it might be necessary to use the powers set out in the Bill quickly, but I see those as administrative requirements that do not get to the basis of the seriousness of the powers or determine the type of court required to provide the necessary judicial oversight.

If the Government want to make that power available, they must do so on the basis of appropriate judicial oversight, and if they need to organise arrangements so that Crown court judges are available at short notice, that is what they should do, in conjunction with the Ministry of Justice, to reflect the nature of the powers under consideration. Liberty, in its briefing note to the Committee, states that

“under the current provisions in relation to restraint orders (which are less intrusive than this proposed measure) such orders must be approved by the Crown Court. No reason is given as to why, at the very least, the Crown Court is not involved in providing judicial oversight.”

The Crown court is the more appropriate court, given the serious interference with the right to privacy and property that the provisions introduce.

With regard to the issue of complexity, the Bar Council makes some equally important observations that question whether Crown court judges are suitably qualified to address the detailed points of law on trust issues and distinctions between legal and equitable interests in particular assets. There are several quite technical legal issues involved in that regard, and the Bar Council has highlighted the judgment in the Court of Appeal case of the Serious Fraud Office v. Lexi Holdings. It stated that

“there can be little doubt that the issues which arose in this case concerning beneficial interests, equitable charges and tracing were far from straightforward. They are not part of the daily work of most Crown Court judges, and indeed this constitution of the Court of Appeal Criminal Division was deliberately arranged so as to ensure that appropriate expertise in matters normally falling within the jurisdiction of the Chancery Division was available.”

I think that the Bar Council used that example to demonstrate the challenges, complexities and issues that might arise in the use of that particular power, so without in any way wanting to question or undermine the advice that would be given to the Justices of the Peace on the exercise of their powers, I think that the issues are by their nature extremely complicated.

In that case, the Court of Appeal suggested that, because of the focus and nature of the activities that Crown court judges would undertake, some of the distinct issues of trust, such as ownership rights and the nature of ownership and of particular assets, were not part and parcel of the daily work of those courts. Indeed, if that argument is made about Crown court judges, I am sure that the argument can by extension be made with regard to magistrates courts.

It was difficult to envisage how those powers could be used effectively with that level of oversight, given the highly complex areas of law beyond which a lay magistrate might be expected to make a determination, even with the appropriate legal support that I have mentioned. Because we think that judicial oversight at that level is appropriate for the type of powers envisaged in the Government’s proposals, we consider the measure to be inappropriate. I urge the Government to reconsider their stance and consider carefully what would be suitable judicial oversight to ensure that these powers are used effectively, proportionately and appropriately. We believe the most appropriate way forward is to have that higher level of oversight, based on the precedent for what is envisaged in these provisions.

Paul Holmes (Liberal Democrat, Chesterfield)

These amendments get to the core of the debate on clause 36. It is not the principle of what we are seeking to achieve that is at stake but the mechanism and detail of how we do it. In essence, clause 36 and related clauses extend the power to search and seize property before conviction, before proceedings have commenced and on the suspicion of reasonable cause by the police officers involved. During the Committee’s evidence sessions, both Liberty and the Bar Council, for example, expressed concerns about that power.

When Paul Evans, the director of intervention at the Serious Organised Crime Agency, gave evidence on 27 January, he argued that these changes were largely technical, backed up by the experience of policing in this area since 2002, but the Bar Council argued that they were substantial, and not technical, changes. Martin Evans of the Bar Council said:

“The Bar Council has no objection to the principle that, in effect, personal assets—cars, jewellery or household effects, and other such things—could be detained under this power.”

However, he went on to say that the Bar Council had particular concerns about moving to a lower tier of oversight—from the Crown court to magistrates:

“The proposal permits, on an application to the magistrates, the property to be detained indefinitely. That is a concern because, as I said, it introduces a lower tier.”——[Official Report, Policing and Crime Public Bill Committee, 29 January 2009; c. 86, Q141.]

Liberty has said similar things. Collectively the argument is, what is the evidence that the current restraint system is not working properly? Paul Evans argued that the experience of the past five to six years indicates the system is not working adequately and requires those changes. What is the evidence that the current powers are not adequate? Above all, why are we moving from Crown court supervision to the lower tier of magistrate supervision? The Minister has not explained why we are taking that step in the Bill, yet it is a fundamental one in the eyes of organisations such as the Bar Council and Liberty.

Another question arises from the code of practice. The Minister has reassured us at various points that the Government and the police are not seeking to infringe human rights. They have to take into account European declarations on human rights. When Mick Creedon, chief constable of Derbyshire, gave evidence, he said that, of course, human rights infuse everything they do. Much of this is going to be wrapped up in regulations in the code of practice, which we have not yet seen. Liberty expressed concern that such a major step should be taken based on regulations in a code of practice that is yet to be seen, rather than on regulations in primary legislation.

At the crux of these amendments is the question of why we should move from Crown court supervision to a lower tier of magistrates. That raises related questions regarding the evidence that we need to adopt these new powers, as well as what is going to be in the code of practice and when we are going to see it—it is not sufficient just to receive reassurances from the Minister.

Vernon Coaker (Labour, Gedling)

The hon. Member for Chesterfield makes a reasonable point, but he must understand—and I have said this on a number of occasions—that if he were in my position or that of the Home Secretary, he would have to wrestle with the fact that a significant number of confiscation orders, which he knows can be passed only by a Crown court, are unenforceable because the assets cannot be got at. That is why he is not against the measure in principle. Frankly, accepting that one can detain assets on arrest, and sometimes in other circumstances, is a big step for the Government, the Opposition and the Liberal Democrats.

The public policy problem is about how we deal with the fact that confiscation orders are unenforceable in many cases. The hon. Gentleman says, “Where is the evidence?” The answer is that confiscation orders involve large numbers of assets that we simply cannot get at—for want of a better way to put it. That public policy problem is part of the issue. The hon. Members for Hornchurch and for Chesterfield accept that fact, so we have to do something about it. Law enforcement, including the excellent chief constable of Derbyshire, who is very close to the hon. Gentleman’s heart, and the Serious Organised Crime Agency tell us that if we are to be effective, quick and easy access to the courts is needed, which is why we proposed the measure.

Let me take the hon. Member for Chesterfield through the procedure. The police, or an accredited financial investigator, decide that they are going to search and seize property. Normally, they would seek prior approval, and there is such provision in the Bill. Frankly—I may not be supposed to say this—I was not sure if an inspector was a senior enough police officer. I thought that there would be an amendment on that because it was something that I had thought about. However, I am reassured about the rank of inspector in every other aspect of prior approval. In most circumstances, we would expect there to be prior approval, but if that approval cannot be accessed, there would be 48 hours to hold the property, then the authorities would obviously have to go to a Crown court for a restraint order. I expect the more serious things to go to a Crown court, but a magistrates court will be acceptable for a simple detention order. Therefore, there is judicial oversight, but the hon. Gentleman is concerned about the level of that oversight; I have been advised that the magistrates courts are perfectly capable.

The hon. Gentleman asked why we are doing this and what the problem with restraint orders is. As the Bar Council said, the property remains in the possession of the person concerned. The fundamental difference with these proposals is that it does not stay with that person—the property is searched, seized and detained. I hope that that answers the specific point about why restraint orders alone are not sufficient. The new power means that the Crown court can add detention of property to the restraint order where appropriate, and nothing can be done with restraint orders except by the Crown court. I imagine that it will deal with more serious concerns and larger amounts of property and the magistrates court will deal with other property.

After 48 hours, further approval is needed to detain the property. There are significant safeguards, about which the hon. Members for Chesterfield and for Hornchurch asked. If somebody acts without prior approval, they will have to report to the appointed person. The Bill also offers another important safeguard that has to be complied with, as the Secretary of State must publish any report received by the appointed person and lay a copy before Parliament, as is the case with other powers under the Proceeds of Crime Act 2002.

As the hon. Member for Chesterfield said, we have not yet seen the code of practice, but because I was concerned about safeguards, the Bill specifically states that the code will be published in draft—I know that we have not seen it yet—and that the Secretary of State must

“consider any representations made about the draft,”

and

“if the Secretary of State thinks appropriate, modify the draft in the light of any such representations.”

The Secretary of State must also lay the draft before Parliament, which must then approve the code of practice. Therefore, even though the code of practice has not yet been seen or published, there is a significant effort in the Bill to try to do some of the things suggested by the hon. Gentleman to provide the reassurance that he thinks necessary.

Paul Holmes (Liberal Democrat, Chesterfield)

I thank the Minister for that response. Will the code of practice be seen before or after Report?

Vernon Coaker (Labour, Gedling)

It certainly will not be seen before Report. The best reassurance that I can give the hon. Gentleman is that Members will have a proper opportunity to look at the code of practice before it is debated by Parliament.

The code will set out how the powers should be exercised proportionately. Before carrying out a seizure, there must be some estimate of the person’s benefit from criminal conduct and of the value of any property to be seized to ensure that only property up to the value of the former is actually seized. There will also be guidelines on how to assess the risk of dissipation, which is what we are all worried about. The code will make clear that it should not be the default position that any person being arrested for an acquisitive crime should have their property seized. It will be important to assess the extent of the person’s criminality and of their unexplained income. The code will provide that particular care should be taken with low-level offenders against whom a confiscation order is unlikely to be made. It will also provide guidance on the definition of exempt property that may not be seized. That point might be of interest to the hon. Member for Hornchurch, because it relates to an earlier discussion. The code will provide for a periodic review by a senior officer of the continuing detention of property under a court order. I hope that that informs the hon. Member for Chesterfield on what we expect the code of practice to contain. Finally, I know that this will not specifically answer the points made by the hon. Gentlemen, but a detention order is subject to an appeal to the Crown court. If a detention order is made in a magistrates court, a defendant can appeal to the Crown court if they wish to object to the order.

James Brokenshire (Conservative, Hornchurch)

If, as the Minister said, he wrestled with the concept of whether the inspector was the appropriate level of officer to use the power in the first place, how did he arrive at the decision that a justice of the peace in a magistrates court was the right level for the initial scrutiny? He will recognise that appeals to the Crown court would be at a later stage. Our argument is that the first line of defence should be the Crown court.

Vernon Coaker (Labour, Gedling)

I took advice from law enforcement officers. As we heard, the member of the Association of Chief Police Officers who deals with the issue said that he felt that the magistrates court was an appropriate level of judicial scrutiny, as did the Serious and Organised Crime Agency. In taking those organisations’ judgment into account, I felt that that level was appropriate.

This is not new; many of the Bill’s provisions replicate provisions in the Proceeds of Crime Act 2002. Given the safeguards that I have mentioned, I am satisfied that that is the appropriate level of judicial approval. We recognise the seriousness of the powers—that is why there are many safeguards. I take the point of the hon. Member for Hornchurch that the initial decision is made in the magistrates court and that although that decision is appealable to the Crown court, that is a latter stage. However, that means that if the Crown court believes that the magistrates court has acted disproportionately and unnecessarily, it can vary or discharge the detention order.

Paul Holmes (Liberal Democrat, Chesterfield)

I have listened carefully to the Minister’s reassurances, but I wish to press him further. In view of what the police have said—presumably in light of their operational experience—why do we need to ratchet this down to the magistrates court? What specific problems have the police encountered over the past five or six years? Has there been a lack of immediate access to the Crown court, or has the Crown court not agreed enough with the police? What has led the police to recommend this change to the Government, when the Bar Council, for example, is alarmed at the implications of moving from the Crown court to a lower tier?

Vernon Coaker (Labour, Gedling)

As I have said, we have taken the advice of the police. The provision replicates similar powers in the 2002 Act, particularly with regard to suspect cash. These are judgments that people make. The magistrates court provides immediacy and speed of action and the police or other law enforcement bodies can therefore act speedily to ensure that assets are not dissipated. Given the safeguards, particularly the appeal to the Crown court, this response is appropriate and proportionate and I therefore ask the hon. Member for Hornchurch to consider withdrawing the amendment.

James Brokenshire (Conservative, Hornchurch)

The Minister’s response to our arguments about the appropriate level of judicial oversight is neither compelling nor persuasive. He talked about wrestling with his conscience over whether the inspector level was the appropriate officer level, and we may perhaps wish to come back to that. In essence, he said that we should take great assurance from and rely on the code of practice, but one of the problems is that the Government’s assurance always seems to be based on something that is not published, or is not available when we are considering significant and substantive powers sought in a Bill. It is difficult for members of the Committee to accept the Government’s assurance when we have not seen the document and do not know what is in it.

We come back to same issues, for example regarding the code of practice on licensing, and I am sure that we will come to them regarding DNA evidence—the Government have tabled amendments on that as well. We just do not know the context. The Government believe that, because of the code of practice, the magistrates court is a more suitable route, but how can they say that with such assurance—notwithstanding what the Bill might say about what the code of practice may include—when we have not seen the code? We can properly assess whether what we are mandating is appropriate only when we have seen that detail.

Mr. Coakerrose—

James Brokenshire (Conservative, Hornchurch)

I will give way to the Minister, although I think I know what point he will make.

Vernon Coaker (Labour, Gedling)

This is precisely why we sometimes try to lay out in great detail the process of drawing up a code of practice. Bills often state that a code of practice will be published in due course, and I have therefore gone out of my way, with the officials, to ensure that there are various stages to that process, which will, in the end, be a matter for Parliament to decide. Also, this is a similar practice to that found in other codes of practice—in the Police and Criminal Evidence Act 1984, for example. However, I have tried to respond to the points that the hon. Gentleman has made in the way that the Bill was drawn up.

James Brokenshire (Conservative, Hornchurch)

I am grateful to the Minister for going out of his way, to use his phrase. However, I still do not think that that is sufficient. Whatever may go into a code of practice or guidance on the way in which these powers can be utilised, that code of practice cannot get to the root of complicated and fundamental points of law and the judgments that will have to be reached on those points of law.

As the Minister will know, in the past I have, sadly, been a lawyer and practised law. I can therefore tell him that issues of equity, legal interest and tracing claims of ownership are very technical issues, which are quite challenging. That is the fundamental point that the Bar Council is seeking to make in the matters that it highlights. When the Minister talked about the various groups and organisations that he had consulted when he was determining that this level of judicial oversight was correct, it was interesting that they all seemed to focus on the enforcement side. There did not seem to have been any consultation with, for example, the Magistrates Association or with the judiciary themselves. Indeed, the Bar Council has made its views very clear, through the note that it provided to this Committee.

If the police and the Serious Organised Crime Agency are saying that they require scrutiny to be at this level, perhaps because of certain practical issues such as the availability of judges or other associated issues, that should be considered. However, I do not think that the Minister has said that. He has said that he has consulted those agencies and they have advised him that they believe that this is the most appropriate level of scrutiny to be applied, but without necessarily giving back-up information or justification for that.

The point was made that the Crown court is used as the appropriate level of judicial scrutiny for restraint orders, which, it is argued, are less intrusive than the types of orders that we are contemplating here. Therefore, although I understand that the Minister has said that he believes that this level of scrutiny is appropriate in the circumstances, I do not think that he has made his case sufficiently strongly to persuade us. That is why I want to divide the Committee on amendment 108.

Vernon Coaker (Labour, Gedling)

I beg to move amendment 261, in clause 36, page 32, line 29, leave out subsection (2) and insert—

‘(2) The property may be detained initially for a period of 48 hours.

(2A) But it must be released if within that period the appropriate officer—

(a) ceases to be satisfied as mentioned in section 47B(1), or

(b) ceases to have reasonable grounds for the suspicion mentioned in section 47C(1).’.

Hugh Bayley (Labour, City of York)

With this, it will be convenient to discuss the following: amendment 113, in clause 36, page 32, line 29, leave out subsection (2) and insert—

‘(2) Provided that any of the conditions referred to in section 47B continue to be satisfied, the property may be detained initially for a period of 48 hours’.

Government amendments 263 and 264.

Vernon Coaker (Labour, Gedling)

After the Division, may I restore harmony and also reassure the hon. Member for Hornchurch that I have not abandoned my style and approach by saying that, with respect to this particular group of amendments, I see a lot of merit in amendment 113? It raises some important issues. However, I would just like to go through the Government amendments, which I believe address the point that the hon. Gentleman has made in amendment 113. It is important to put this on the record.

I confirm that our policy intention is that property may be detained under proposed new section 47J only for as long as the appropriate officer is satisfied that all conditions under proposed new section 47B continue to be met and he or she continues to have reasonable grounds for suspecting that the property might be dissipated. If the officer is not satisfied on either count, I accept that the property must be released. Government amendment 261 deals with that important point. I am grateful to the hon. Members for Hornchurch and for Bury St. Edmunds for identifying the gap in the provisions.

Government amendments 261, 263 and 264 will add to the new sections of the 2002 Act proposed in clauses 36 to 38. Those provide powers to search and seize property that might otherwise not satisfy a confiscation order or might be diminished in value. We tabled the amendments in response to amendments tabled by the Opposition and we are grateful for their assistance in pointing out the issue. We had taken the point to be implicit, but in response to amendment 113, we are making it explicit.

The Government amendments will add a further safeguard to the operation of the powers, which I think will be welcomed by the Committee. If an officer seizes property, he may detain it for 48 hours before obtaining judicial approval for its continued detention. The amendments clarify that the proposed new section 47B preconditions to exercise the power, and the suspicion of dissipation mentioned in proposed new section 47C(1), must still exist for the continued detention of the property during the 48 hours. That will place a much stronger obligation on the seizing officer to continually consider the grounds on which he operates the powers and the reasons for which the property was seized.

I will take this opportunity to signal to the Committee that I will table a further amendment on Report. In our 12 February sitting, we a had a constructive debate on the need for the police and others to use seizure and detention powers with care and discretion. We all accept that seizing someone’s property is a serious matter. I undertook to consider further the matter of proportionality in the use of powers to detain seized property, and I have done so. I see some merit—a lot of merit, if I am honest—in inserting an explicit obligation for the detaining officer to release property when they are no longer satisfied that the conditions for its detention are met. Necessity and proportionality will be an ongoing consideration, but as a strong indication of the importance that I attach to the proportionate use of the powers, I will place such an obligation clearly in the Bill.

I know that I disagreed with Opposition Members on the last point, but I hope that I have given them and those who read our debates some reassurance that we are continually considering how these necessary powers can be used proportionately, as they are a significant extension of powers.

James Brokenshire (Conservative, Hornchurch)

As the Minister said, Government amendment 261 addresses the issue we raised in tabling amendment 113, but in a slightly different way. Clearly, our point has been taken on board. We welcome that and the Minister’s preparedness to accept our points on the operation of clause 36. I also note his comments on proportionality, which we debated before the recess. We look forward to seeing his amendment on Report to address the need for these powers to be used in a reasonable way.

We are grateful to the Minister for listening to our points and for tabling the amendments. Government amendments 263 and 264 will make the same changes as amendment 261 in subsequent provisions. On that basis, we accept the Government amendments that will implement our proposal.

James Brokenshire (Conservative, Hornchurch)

I beg to move amendment 114, in clause 36, page 33, line 15, leave out ‘ A magistrates’ court’ and insert ‘The Crown Court’.

Hugh Bayley (Labour, City of York)

With this it will be convenient to discuss the following: Amendment 115, in clause 36, page 33, line 27, at end insert

‘provided that the Court shall only extend the period of detention under Clause 47J by such period as it considers reasonable and proportionate’.

Amendment 116, in clause 36, page 33, line 36, leave out subsection (5).

Amendment 117, in clause 36, page 33, line 40, at end insert—

‘47MA Right of third parties to make representations

(1) The Crown Court must, on an application by a person, give the person an opportunity to make representations in proceedings before making an order under section 47M if it considers that the making of the order would be likely to have a significant adverse effect on that person.

(2) The Crown Court must, on an application by a person, give the person an opportunity to make representations in proceedings before it about the variation of an order under section 47M if it considers that—

(a) the variation of the order; or

(b) a decision not to vary it;

would be likely to have a significant adverse effect on that person.

(3) The Crown Court must, on an application by a person, give the person an opportunity to make representations in proceedings before it about the discharge of an order under section 47M if it considers that—

(a) the discharge of the order; or

(b) a decision not to discharge it;

would be likely to have a significant adverse effect on that person.

(4) The Court of Appeal when considering an appeal in relation to an order under section 47M must, on an application by a person, give the person an opportunity to make representations in the proceedings if that person were given an opportunity to make representations in the proceedings which are the subject of the appeal.’.

Amendment 118, in clause 36, page 34, line 21, leave out ‘magistrates’ court’ and insert ‘Crown Court’.

Amendment 119, in clause 36, page 34, line 23, leave out ‘Crown Court’ and insert ‘Court of Appeal’.

Amendment 120, in clause 36, page 34, line 25, leave out ‘Crown Court’ and insert ‘Court of Appeal’.

Amendment 121, in clause 36, page 34, line 26, leave out ‘magistrates’ court’s’ and insert ‘Crown Court’s’.

Amendment 122, in clause 36, page 34, line 29, leave out subsection (3).

James Brokenshire (Conservative, Hornchurch)

A number of these amendments repeat some of my earlier arguments about the need for proportionality, for judicial oversight to come from the Crown court rather than the magistrates court and for appeal rights to be to the Court of Appeal. In the light of our previous debate I do not intend to rehearse those arguments again. However, I ask the Minister to reflect carefully on the points that have been made not just by me but by the Bar Council and Liberty on the appropriate level of judicial oversight. Obviously we look forward to seeing further Government amendments on the proportionality of the use of these provisions.

Amendment 117 makes a slightly different point. It seeks to give third parties who have an interest in the assets that have been detained, and in respect of which an application for further detention is sought, the right to make representations to the court. As previously noted, innocent parties may have a direct interest in the relevant assets and their continued detention may cause them hardship. In order that convention rights are maintained and upheld, amendment 117 provides for a specific right to make representations to the court.

It is interesting to note that Government amendment 270 adds a right for third parties to make representations prior to the realisations of assets. If that concept is accepted in that context why should it not equally apply if an order is granted authorising the detention of such assets for an extended period? While we are looking at this part of clause 36, could the Minister tell us why proposed new section 47N(3), on the discharge, variation and lapse of detention orders, provides that an application must be made to the court to discharge the detention order where proceedings for the offence mentioned have been concluded? Why is that not automatic? Why is that court application required? Why does the order not simply lapse in these circumstances?

Vernon Coaker (Labour, Gedling)

Let me deal with what the hon. Gentleman has said. I think he will be pleased with one or two of the points that I shall make, to continue with this constructive approach. He has made one or two interesting points with his amendments—

David Ruffley (Conservative, Bury St Edmunds)

You’ll ruin his career at this rate.

Vernon Coaker (Labour, Gedling)

I am trying to enhance his career. Constructive debate is a way to enhance one’s career.

These amendments deal with when the hearing takes place, rather than the level of judicial oversight for the prior approval that we debated earlier. They are about which court is appropriate to deal with the various parts of the Bill. Amendments 114, 116 and 118 to 122 are about which court is appropriate for making an order for further detention of the seized property and for considering appeals. As I explained earlier, these new powers are based on similar provisions in the Proceeds of Crime Act 2002 as regards detention and forfeiture of cash. Judicial oversight as regards seized cash is provided by the magistrates court or a justice of the peace. An appeal against forfeiture of cash is heard in the Crown court. We will, therefore, not create a precedent with such further detention powers and the appeals provisions in clause 36.

As I have stressed from the outset, we expect that higher value or complex cases would be subject to a restraint order. In those cases, the authority for further detention of property would come from the Crown court—as I have said on numerous occasions, restraint orders can be dealt with only by the Crown court. It is only in those cases where there is no restraint order that application further to detain seized property is made to the magistrates court. The magistrate must be satisfied that there are reasonable grounds for suspecting that the seized property might be disposed of or hidden, or that the value of the property might be diminished.

However, the hon. Member for Hornchurch raises an important point in amendments 116 and 122 and I have some sympathy with the concerns that he raises. I want to be satisfied as to the appropriate level of judicial oversight in such cases and whether it is right for a single justice of the peace, rather than a magistrates court, to deal with the hearings in relation to detention orders. I would therefore like to consider further whether a justice of the peace would be properly equipped to consider applications under proposed new sections 47M and 47N. I hope that the hon. Gentleman will find it helpful if I say that I will give further consideration to those amendments and will return to those matters as the Bill progresses. On that basis, I ask the hon. Gentleman to consider withdrawing his amendments, but I stress that I will consider his points further.

Regarding amendment 115, I again recognise the importance of the detention period being reasonable and proportionate. It will be for the magistrates courts to consider what is a reasonable and proportionate period for which the property can be detained. In addition, as I have previously explained, any person affected by an order can apply at any time for variation or discharge of the order. More generally, the proposed new sections 47B(9) and 47B(10) of the Proceeds of Crime Act, set out in clause 36, mean that the powers cannot be exercised in cases where there is undue delay in the criminal proceedings, or the application to reconsider the confiscation order. Furthermore, a proposed new section 47M(3) prevents undue delay creeping in as regards the continued detention of the property. Such delay is a ground for a discharge of a detention order.

Amendment 117 draws attention to the important issue of the rights of third parties. Let me assure the Committee and the hon. Gentleman that we fully recognise the need to take account of third party interests in detained property. The defendant, or indeed any third party affected by a detention order, can apply for the discharge or the variation of that order. That gives third parties the opportunity to apply to the court for the release of seized property.

The provisions on third party rights in clause 36 mirror those in section 42(3) of the 2002 Act, as regards the rights of third parties to apply for the variation or discharge of a restraint order. There is also a right of appeal to the Crown court against a magistrates court’s decision. As I have said before, those are all appropriate safeguards to ensure that the seizure and detention powers are used proportionally. However, I accept that the rights of third parties are important and therefore I would like to consider further the scope for allowing third parties the opportunity, on application, to make representations in respect of hearings under proposed new section 47N.

Beyond that, a code of practice will contain further details on the exercise of the search and seizure powers, including the need to take account of third party rights, in order to ensure that they are exercised lawfully and proportionately. On the issue of the code of practice, I will take the opportunity to respond to an issue raised by the Bar Council in regard to the dissipation of assets. I confirm to the Committee that the code will make it clear that the risk of dissipation will have to be significant before the property is seized.

I hope that with those remarks and explanation, the offer to consider some of the hon. Gentleman’s points and to consider further the question of the rights of third parties, the hon. Gentleman might consider withdrawing his amendments.

James Brokenshire (Conservative, Hornchurch)

I am grateful for the way in which the Minister responded to this group of amendments in that he is prepared to reflect on which is the appropriate court in respect of the provisions in the clause. Equally, I am grateful that he will look also at other points, for example third party rights. While he says that it will be open to a third party to make an application, it needs to be clear that third parties are not prejudiced and that if they have rights in respect of the assets, they are able to make representations at an appropriate stage. If there is an initial hearing, it should be possible to make representations then, rather than the party being forced subsequently to make an application to challenge or override an order that has been granted. However, I accept the spirit in which the Minister replied, and in light of his assurance that he will look at the matter—we will listen carefully to how he responds on Report—I beg to ask leave to withdraw the amendment.

Clause 37

Clause 38

Clause 39

Vernon Coaker (Labour, Gedling)

I beg to move amendment 266, in clause 39, page 52, line 26, leave out from ‘property’ to end of line 28.

Hugh Bayley (Labour, City of York)

With this it will be convenient to take Government amendments 267 to 289 and 319 to 321.

Vernon Coaker (Labour, Gedling)

The Committee discussed Government amendments 266 to 289 on 12 February, before the recess, as part of a more general debate on the seizure, detention and sale of property. I do not propose to go over all of that again today, but will instead focus on Government amendments 319, 320 and 321.

Amendment 319 amends section 69(1) of the Proceeds of Crime Act 2002. It is consequential to other amendments that we have made elsewhere in the Bill. Section 69 of POCA makes provision for England and Wales; amendments 320 and 321 make the corresponding changes to the relevant provisions for Scotland and Northern Ireland. Section 69 makes provision about how the courts are to exercise their powers: for example, it emphasises that the powers must be exercised with a view to allowing third parties to retain or recover the value of any interest they hold, and that the satisfaction of a confiscation order takes precedence over other obligations of the defendant or the recipient of a tainted gift from the defendant. It also requires that powers must be exercised with a view to maintaining the value of the amount available for confiscation. The amendments add the new power to the courts of making directions about proceeds, most obviously in respect of innocent third parties.

Amendments 266 to 269, 273 to 278, 282 and 284 to 286 add to the new provisions in POCA relating to seizing, detaining and selling property to meet the value of an outstanding confiscation order. They merely provide that, out of the amount paid in settlement of a confiscation order, the police and other law enforcement agencies can claim back their reasonable costs of having to store and sell property. It is entirely reasonable that the additional cost that falls on the police and others is reimbursed, much as it is at the moment under POCA in respect of receivers. It is a matter of budgeting. Costs are reimbursed after the event, rather than being funded up front, and they are paid out of the settled amount, so that no additional burden of payment falls on the defendant. I see the hon. Members for Hornchurch and for Chesterfield acknowledge the importance of that.

The provision is simply to do with the distribution of the money that has been collected. That it is the magistrates court and not the “enforcer” that decides what the reasonable costs are provides a safeguard by ensuring independent judicial oversight of the costs incurred.

James Brokenshire (Conservative, Hornchurch)

The Minister has fastened on the key point and is explaining it. To be clear, we are talking about simply an application of proceeds rather than any additional cost—an order of priority, if I can describe it like that, in respect of which organisation gets a particular sum of money first in the distribution of cash that has been realised. Will he confirm that the provision does no more than that?

Vernon Coaker (Labour, Gedling)

That is correct—I hope that reassures the hon. Gentleman. He has explained a fundamental point well.

Amendments 270, 272, 279, 281, 283, 287 and 289 add to the new provisions in the Proceeds of Crime Act. They simply amend the provisions on distributing sums received in consequence of payment of a confiscation order. Notably, they provide that where a court has determined the reasonable costs that the police or another law enforcement agency has incurred, those costs are paid from the recovered amount. They also provide for the court, whether a Crown court or magistrates court, to make directions on any payment. That means that any third party interests in the property can also be paid back.

Amendments 271, 280 and 288 are merely technical amendments. The changes to POCA that those amendments remove will be made in schedule 6 to the Bill. Nothing is changing. It is just tidier to make all the consequential amendments that flow from the changes to POCA in one place.

I hope that, having given the assurances that I did to the hon. Member for Hornchurch, he sees the sense in the amendments that we have proposed.

Vernon Coaker (Labour, Gedling)

I wish to put on the record a few remarks that I think are important. I will not detain the Committee long, but the clause is important, as it goes to the heart of recovering the money to meet the confiscation order, which essentially is what we are all trying to do. The exchange between the hon. Member for Hornchurch and I had goes to the nub of what could have been controversial about the clause. Although that exchange was brief, it was very helpful.

The clause provides an important addition to the powers to enforce outstanding confiscation orders. It is obviously not enough for the court to make a confiscation order against a convicted defendant. I say again to the hon. Member for Chesterfield that confiscation orders can only be made in a Crown court. Payment of the confiscation order must be ensured, otherwise the order has no value. We all feel better if a confiscation order is made, but have we denied the criminal assets to the individual? We simply have to do better in ensuring that these orders are paid.

The clause provides that property that has been seized in England and Wales by an appropriate officer under a relevant seizure power, or which has been produced to such an officer in compliance with a production order under the Proceeds of Crime Act, may be sold to meet a confiscation order. That completes the set of powers of being able to retain property seized under other powers for confiscation purposes in clauses 33 to 35, the new power to search for and seize property on or following arrest in clauses 36 to 38, and now this important power of sale. Those are significant new powers to aid the enforcement of confiscation orders, which I know is something that all of us in the Committee want to see.

Specifically, the clause provides that a magistrates court can authorise the sale of seized property if a confiscation order has been made and the time to pay that order has expired without its being paid. The clause does not apply to cases where an enforcement receiver has been appointed; in such cases, the enforcement receiver will sell the property under existing powers.

The property must have been seized under specified powers in the Proceeds of Crime Act 2002 or the Police and Criminal Evidence Act 1984, although there is the power to add to that list by order. The listed seizure powers are those likely to have been used in respect of defendants who are also subject to a financial investigation. A confiscation investigation aims to establish whether a defendant has benefited from his criminal conduct and, if so, the extent or whereabouts of that benefit.

Those who can be authorised to sell the property are officers who perform financial investigations under POCA, namely accredited financial investigators, constables, officers of HMRC, SOCA officers and members of staff of the main prosecution agencies. The money raised by the sale is to be paid directly to the court enforcing the confiscation order.

There is a right of appeal against a decision either to make or not to make an order authorising sale. The right of appeal is available to affected third parties, but not to the defendant against whom the confiscation order has been made. He or she has an existing right of appeal against confiscation as part of a general right of appeal against sentence under the Criminal Appeals Act 1968.

Clause 40

Clause 41

Clause 43

James Brokenshire (Conservative, Hornchurch)

I have two points to make in relation to the clause, which extends the limitation period in which civil recovery proceedings can be brought from 12 to 20 years. My first point is on the ability to obtain a fair trial after such an extended period. The Minister may be aware that in response to the consultation on the asset recovery action plan the Fraud Advisory Panel voiced the concern that

“the problem with extending the limitation period is that it may be considerably more difficult for a defendant to assimilate evidence necessary to defend the case; memories may be faded and records thrown away.”

The panel was concerned about the impact of the clause on the ability to obtain a fair trial. Why does the Minister consider the 20-year period appropriate? Has he thought through the Human Rights Act implications for the ability to obtain a fair trial after an extended period? Although, if someone simply got away with it and the authorities have finally worked out that assets have been received by criminal activity, I respect and understand the need to ensure that the benefit of those assets is not in the hands of that person, a significant period has elapsed. There is therefore a question of proportionality and what is appropriate to balance the private versus the public arguments and to ensure due process.

My second point is slightly different. A victim of an acquisitive crime, for example, must generally commence any action against the perpetrator within 12 years of the crime. Why should the state be in the privileged position, as envisaged in the clause, of having a further eight years to bring an action for civil recovery if an individual in similar circumstances does not have that benefit? In other words, why have the Government decided that there should not be a level playing field, and why should civil recovery procedures not apply equally to a victim of an acquisitive crime? It would be interesting to know why the Minister has fastened upon that point as particularly relevant.

In what circumstances have the police and SOCA advised him that they have identified assets that were received through unlawful activity, but they now feel prevented from taking action? How significant a problem is that? How many cases does the Minister expect will be revisited as a consequence of the clause, and why does he therefore regard it as important and necessary to the Bill?

Vernon Coaker (Labour, Gedling)

The hon. Gentleman’s second point—on civil recovery and how far one goes back in relation to evidence of an acquisitive crime—is interesting. I will say something about that in a moment.

For once, I am not sure whether I properly understand his point about fair trial. It strikes me that, whether a trial is in the civil or criminal courts, if the evidence is not of sufficient quality, it is part of a court’s fundamental process that proceedings will not be able to be pursued in the judicial system. There will be cases where it will be more difficult to gather evidence and collect material—as the hon. Gentleman said, memories fade—but that is part of most court processes. I understand his point that, if the amount of time is extended, such circumstances are more likely to occur, but that will clearly be a matter for the court to consider. The inadequacy of memories or written material is not a reason to say that it is not appropriate for us to legislate under the powers. I would have thought that that is something that the court will take into account.

James Brokenshire (Conservative, Hornchurch)

To clarify the point that the Fraud Advisory Panel highlighted, I am comparing the resources that might be available to the arms of the state to launch a prosecution and to obtain all the evidence and documents mentioned by the Minister with the ability of an individual to defend that case in circumstances where a significant period has elapsed. We presumably have limitation periods for a reason, and the Minister might be able to make an argument for a period of more than 20 years, but the issue has clearly been raised with him, Why has 20 years been decided upon and why is the period of 12 years to be extended now?

Vernon Coaker (Labour, Gedling)

The hon. Gentleman makes the point that I was about to make. He has referred to one particular response that we received on extending the civil recovery period from 12 to 20 years, but a significant number of people responded by saying that there should be no limit on the period in which we seek to recover assets. Again, a judgment has been made. We received evidence from SOCA and law enforcement of some cases that have been time barred, so we thought it appropriate to extend the time period from 12 to 20 years.

To return to my earlier response to the hon. Gentleman, he will know better than me the process in court, but as far as I see it, the rights of defendants in court are always protected as far as possible by the court. Enabling defendants to defend themselves, particularly in civil proceedings, is one of the measures that the court adopts to ensure that a fair trial takes place. I understand the point that the hon. Gentleman makes about the full power of the state being used as against the rights of an individual to protect themselves.

A court is a public authority for the purposes of the Human Rights Act. It has to ensure, as a matter of principle, that a fair trial can take place. I should have thought that the fact that that is laid out will ensure that there is a fair trial, even when we have extended the civil recovery powers from 12 to 20 years. Although the hon. Gentleman tries to equate the criminal law with the civil law, as I understand it they are significantly different. Therefore the civil recovery process is a different process from the criminal process and so the time periods will be decided upon in the appropriate way.

James Brokenshire (Conservative, Hornchurch)

While the Minister is right to say that there is a distinction between civil and criminal law, the issues overlap to a certain extent as we go into this sort of area. Is he prepared to think about recovery on criminal proceedings, given that there does not seem to be a level playing field here? It is being extended on one side on the same or similar subject matter, yet the criminal law seems to have an earlier limitation period which, on his line of argument, seems less supportable now.

Vernon Coaker (Labour, Gedling)

I will always consider things. I have become more of an expert on the civil law than the criminal law and more of an expert on all sorts of different laws since I have had this position. I have never studied law and nor am I likely to. I understand the term is a pupil barrister and I am very much a pupil. I will consider the point that the hon. Gentleman has made. This is an important provision. There have been problems with the limit and this is a sensible way forward.

Clause 43 amends the Limitation Act 1980 and its equivalents in Scotland and Northern Ireland in order to extend the limitation period in which civil recovery proceedings may be brought for the recovery of the proceeds of unlawful conduct under chapter 2 of part 5 of the Proceeds of Crime Act 2002. The clause will enable civil recovery proceedings to be brought within 20 years from when the original property was obtained through unlawful conduct, rather than 12 years as at present. The limitation period applies from the date on which the cause of action of the relevant enforcement authority, for example SOCA, accrued. The date is the date on which the property was obtained through unlawful conduct.

The civil recovery scheme for the recovery of the proceeds of crime, which was introduced in the Proceeds of Crime Act, has been running successfully now for around six years. Not surprisingly, the new scheme got off to a slow start as cases and the new legislation were tested in the courts, but the Assets Recovery Agency successfully saw off the legal challenges and we now have a robust scheme in place.

Civil recovery is a powerful tool in attacking criminal finances. That is why, when we merged the key functions of the Assets Recovery Agency into SOCA, we took the opportunity in the Serious Crime Act, which the hon. Gentleman and I also had the pleasure of debating, to give civil recovery powers to a wider range of authorities, including the Director of Public Prosecutions and the director of the Serious Fraud Office. The Serious Fraud Office had an early success in the use of these powers with the obtaining of an order of £2.25 million last October, which has been paid.

The experience of civil recovery over the last few years has shown that a 12-year limitation period for bringing proceedings has allowed some potentially recoverable property to go untouched, as the enforcement authorities are prohibited from taking any action. Civil recovery powers are increasingly being used to tackle serious organised crime, which by its very nature frequently goes back further than 12 years, and there are career criminals whose serious criminality can last much of their adult lives. In addition, large-scale international corruption can go back decades, and if civil recovery is to be used to recover assets stolen by corrupt regimes, as envisaged by the World Bank and other international partners, we will have to go back further than 12 years.

We did consult on extending the 12-year limit in civil recovery cases as part of a wider asset recovery action plan. A large majority of the respondents favoured an extension of the time limit, with some calling, as I have told the hon. Gentleman, for it to be removed altogether. The clause seeks to address those views by extending the limit to 20 years. Subsection (2) will apply the 20-year limit to causes of action accruing within 12 years of commencement, which is an important point. In other words, causes of action falling within the existing 12-year limitation period will be subject to an additional eight years in which they are actionable in the future. That will capture those whose property is already liable to civil proceedings under the current 12-year period by prolonging the time for bringing proceedings. It will also cover future cases in which the cause of action accrues more than 12 years after commencement, and those cases will also have the 20-year limitation period. Those cases in which the 12-year limit has already expired will remain time-barred and will not be reactivated. I believe that that is a proportionate measure to recover assets acquired through unlawful conduct.

Clause 46

James Brokenshire (Conservative, Hornchurch)

I will raise one general point of principle and then some more general queries. The point of principle is that clause 46 gives a new power of what might be termed “administrative forfeiture” without the need for a court order. An important principle is being set out: in essence, the state can order the forfeiture of assets without going to court. That might be convenient for law enforcement and SOCA, but it will erode a fundamental principle of the law on property rights. If it is argued that in some way that is about cost, administrative convenience, access to the courts and timing, those arguments have to be balanced against the principle of the existing requirement for the state to go to court to obtain an order to get the forfeiture of assets in those circumstances. That concept and the need for due process to be seen to be done—a court being seen to be the body that actually uses the power—is important for the way in which we organise ourselves and for the sort of society we want. The Minister needs to come up with a clear and persuasive case for why that balance should not be adhered to and why those powers are so necessary and appropriate that the Government have to go against the current requirement for a court application to use powers of forfeiture and instead go through this process of administration.

On the use of forfeiture and the performance of the relevant agencies more generally, the Minister will know that we have had various debates and discussions before about the historical performance of the Assets Recovery Agency and the fact that it did not meet its targets, which in many ways was why it was merged into SOCA. The key questions are about how SOCA is performing, whether it is using those and other powers appropriately, and whether its recoveries exceed its costs, because that was the big problem with how the Assets Recovery Agency operated. That agency had to be changed because although it had recovered £23 million by December 2006, it had cost the taxpayer £65 million. The Minister will be aware of the reports of the National Audit Office and the Public Accounts Committee highlighting the weaknesses in the Assets Recovery Agency and how it conducted its business. We need to know that there will be some transparency in how SOCA uses those powers and how it performs financially, because it is sometimes difficult to read from SOCA’s annual report how it is performing and what level of recoveries, forfeitures and financial assets it has managed to recover when using such powers. Will the Minister reassure the Committee that SOCA will publish financial information on its asset recovery function showing its net recoveries using those powers?

The old ARA used to provide such information, and the Minister’s colleague, the Under-Secretary, has provided me with parliamentary answers on this subject, for which I am grateful, but it is important to know about net recoveries—costs against assets recovered—if we are to understand and scrutinise SOCA appropriately. Similar information that was previously obtained about the ARA flagged up the problems on which the NAO and PAC reported, so it is important to understand that SOCA is acting appropriately and is not in the unfortunate position in which the ARA found itself of having higher costs than recoveries from forfeiture and recovered assets. We need that assurance not only to see how powers are being used, but to be sure that SOCA is delivering value for money when utilising those and other powers.

Vernon Coaker (Labour, Gedling)

Cases in which people contest these matters will go to court. Only in uncontested cases can a forfeiture order be made. If someone receives a notice saying, “You are going to forfeit this detained cash,” all they have to do is say, “I object,” and it will become a matter for the courts. One would suppose that if someone thought, “My goodness, the state is taking money that is legally mine—money that I have worked for all these years and that I have saved for my retirement,” they would object. If the police had detained someone’s money, and they received a letter telling them that it would be forfeited unless they objected, 99.9 per cent. of the population would say, “Hang on, that money is legally mine; I’m going to object,” and it would become a matter for the courts.

People do not have to prove anything for their case to go to court. They do not have to prove that the money is theirs or that it is not criminal money; they have only to say, “I object to forfeiting this money,” and it becomes a matter for the court. Which people would not do that? That is the question is it not? Who would not say to the court, “I object to you detaining my money,” if £10,000 of their money was being held and was going to be kept? Does anyone honestly expect that that person would not ring up the court and send them a note saying, “Excuse me, I object”? Who would not do that? That question answers itself. The people who will not do that are those who think, “Hang on a minute, I obtained this money illegally or criminally.” The question the hon. Member for Hornchurch did not answer is, if money is taken from a person and detained and they know that it was gained honestly and legally, why would they not tell the person who takes it that it is legally theirs? There must then be a court hearing. Why would anybody not reasonably do that? The vast majority of the population would be amazed to think that anybody who has money legally would not object to somebody taking it from them. If it was my money, there would be a letter in the post straight away.

James Brokenshire (Conservative, Hornchurch)

I hear what the Minister says, but he is making various assumptions in saying that a person who gains money legally will always object. He said that the vast majority of those who do not object will be criminals or those who know they have received money unlawfully. However, there may be circumstances in which that is not the case. Somebody in receipt of such a notice might not fully appreciate its nature and ambit and that forfeiture will arise. That could happen regardless of what is stated in the provisions on the right to challenge such a notice.

I caution the Minister about making the administrative convenience argument. Why should there not be a simple obligation on the relevant authorities to obtain the necessary order from a court and be done with it? I want to understand why it is felt that the route in the clause is better. There is a broader issue of principle because the proposal sets certain precedents. That is why I am not just focusing on the specifics of the clause.

Vernon Coaker (Labour, Gedling)

I understand the hon. Gentleman’s point, I just do not agree with it. I rarely say that I just do not agree with people. There is a process and the clause is about speeding up that process and not wasting the court’s time, while ensuring that the power is used in a necessary and proportionate way.

When I went through the Bill I ensured that it contained all sorts of safeguards. If someone receives a forfeiture notice saying that this mythical £10,000 will be detained and held by the state, there are 30 days in which they can object. If they do so, there will be a court hearing. If the court decides that the forfeiture notice should become an order, there is another 30 days in which to object—that is 60 days.

In exceptional circumstances, the person can go to the court and put the case made by the hon. Gentleman. They could say, “I’m sorry, I live in Spain. I come back to my place in the UK every three months and, goodness me, when I returned I found a notice in my letter box saying that I will lose £10,000.” Being an honest person, they might ring the court and say, “The exceptional circumstance is that I forfeited the money while I was in Spain. How was I supposed to know?” The Bill will give that person the right of appeal to the court to say that there were exceptional circumstances for running out of time. Because they were in Spain for three months, they can go to the court and it can set aside the order.

There have been many debates on this provision on real issues. I understand the point about traditional oversight and such things. However, on this issue, the only people with anything to worry about are those who have obtained cash criminally, had it detained and as a consequence will forfeit it unless they follow due process. The clause is an important part of the Bill. I would have hoped that the judicial oversight, the additional time available and the appeal would have been sufficient, but I have clearly failed to convince the hon. Gentleman of that. We have tried to build in the necessity to ensure that more cash is forfeited with judicial oversight.

James Brokenshire (Conservative, Hornchurch)

I rise briefly for the last time in this section to say that this comes down to whether one accepts, as a starting point, that it is right for the state to have the ability to forfeit private assets, or whether ones feels that the court should have that ability. I recognise what the Minister says about judicial oversight, but that depends on who has the ultimate authority. He is setting a precedent by saying that the state rather than the court has the right to forfeit. It is that distinction between the judiciary, and the legislature and the Government, that I seek to underline on the basis of fundamental principles. While I accept that he does not understand it, that is the basis of my argument. I do not support criminal elements or those who have acquired ill-gotten gains through illegal means.

Vernon Coaker (Labour, Gedling)

It was unfair of me to say that I did not understand the point—I did. I suppose that I was saying that I do not agree with it. As always, the hon. Gentleman put his point perfectly.

I shall make one further point on judicial oversight. The hon. Gentleman does not agree with my point and feels that I am setting a precedent, but I have tried to balance the need to get more detained cash forfeited with sufficient safeguards to ensure that somebody can go to the courts to protect their money. However, there will, of course, already have been a court order to detain the cash.

James Brokenshire (Conservative, Hornchurch)

It is different.

Vernon Coaker (Labour, Gedling)

The hon. Gentleman says that it is different. The cash is detained by a court order and is then forfeited. The point of difference is that the hon. Gentleman wants there always to be judicial forfeiture, but in certain circumstances there is a case for administrative forfeiture. Administrative forfeiture is not, however, automatic. There is judicial oversight, so someone can go back to the court and say that the forfeiture is not fair and they wish to contest it because the money was not criminally gained. Providing that that is done, the measure is proportionate, particularly as in exceptional circumstances someone can appeal if the time limit laid out in the Bill has run out.

There are increasing numbers of detained cash investigations and detained cash orders, and there is the need therefore to try to forfeit the money. We all want to ensure that more criminal assets are obtained from criminals and that they do not gain from their criminal activity. This is a proportionate step forward; it balances the administrative process with some judicial oversight.

I apologise; I forgot to deal with SOCA. Hon. Members will know that I always try to answer the questions. Whether I answer them to their satisfaction is another matter. The hon. Gentleman raised a point about SOCA. The easy part of the answer is that he knows that SOCA will publish its annual report, in which it will have to outline its progress. SOCA will publish its reports in the same way as ARA did, and that should allow proper comparison between them with respect to assets recovered. I know the hon. Gentleman is concerned about that. I hope that that is helpful to him.

Clause 48

James Brokenshire (Conservative, Hornchurch)

I beg to move amendment 252, in clause 48, page 62, line 1, leave out subsection (2).

We come now to a separate part of the Bill that deals not with asset recovery, but with matters relating to extradition and, in particular, the issue of the adoption of the Schengen information system II: how it applies to us in the UK and the interrelationship with the European arrest warrant. It is worth noting that the UK is not a part of the Schengen convention and does not currently have access to the existing Schengen information system. The framework decision underlying the EAW, though, envisages that an issuing judicial authority would transmit an EAW directly to the receiving country’s judicial authority, or by means of issuing an alert for the request of a person through the Schengen information system.

As we heard in evidence, the UK currently receives EAWs via Interpol channels, or through the Serious Organised Crime Agency. Amendment 252 is a probing amendment tabled in order better to understand the relationship between a situation where an article 26 alert has been entered on the Schengen information system, and where it has not. My understanding was that the change to the Extradition Act 2003 was intended to facilitate the UK’s compliance with the framework decision, yet subsection (2) appears to go further than this, enabling the transmission of an EAW by electronic means other than an alert on the new Schengen information system II. What do the Government envisage by that?

Will the Minister also explain what reciprocal arrangements exist with other countries to enable them to receive and process EAWs issued by the UK and transmitted in electronic form, as envisaged by the clause? Can he confirm how EAWs are currently transmitted by the UK to other countries? What impact does he expect this provision to have in terms of additional requests for extradition arising from alerts through the Schengen information system II?

In evidence to the Committee, we heard that there was an expectation that there would be a considerable increase in the number of EAWs, which would require processing by law enforcement in this country as a consequence of the changes envisaged by this clause and the Bill. Does the Minister agree with that evidence and what does he expect the cost impact will be for police forces in processing such requests? He will well appreciate the budget pressure on police forces at the moment and he will note the reports today of police forces having to reduce the number of police officers as a consequence of such budgetary pressure. What cost impact will the additional processing, required by an increase in EAWs, have on the police forces that will have to deal with arresting people for matters associated with them?

The Minister will recall that we were told that a significant number of EAW requests were being received from Poland. Does he envisage that these changes will have a bigger impact on police forces that have seen an above-average increase in population due to migration—the county of Cambridgeshire obviously springs to mind? Previous comments have highlighted the knock-on impact on police budgets of the cost of translations and of addressing an increase in population of workers coming from other accession states in the EU. What assessment has he made of the impact of those changes, particularly on those police force areas that have already seen challenges and issues to their budgets arising from them? Therefore, if further EAWs are anticipated, as seems to have been suggested in evidence, what impact does he expect this to have on police forces generally and on specific police forces that have seen an increase in population due to migration and accessions to the EU? It is important to understand this in terms of the impact of the clause the Government are proposing and what preparations have been made, are being made and will be made to ensure that any impact is properly assessed and calculated and taken into account by police forces.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

The amendment has been correctly put by the hon. Member for Hornchurch. I wondered why this subsection was included and looked at the explanatory notes, which are difficult to follow unless you are an expert on the 2003 Act and extradition in general. They specify on page 38 that the UK

“be required to ensure that all current alerts relating to people wanted for arrest for extradition purposes which have been entered on to either SIS or SIS II by other member states have been validated. These provisions accordingly allow for the consideration and certification of article 26 alerts and extradition alerts transmitted under SIS (article 95 alerts).”

Presumably, this subsection relates to those but it would be helpful if the Minister could explain from where the requirement stems.

I have one other question about this clause, which it seems appropriate to raise now, in relation to the date included in new subsection (6)(a). There is an amendment that could be raised at this point, but I have two. The Bar Council says that the reference to 12 December 2006 in new subsection (6)(a) should read 20 December 2006, which it describes as the date on which the Committee of Permanent Representatives confirmed its agreement on the draft Council decision. Justice, while giving no explanation, argues that instead of

“Council Decision on the establishment, operation and use of the second generation Schengen Information System of 12 December 2006”,

it should say,

“Council Decision 2007/533/JHA of 12 June 2007 on the establishment, operation and use of the second generation Schengen Information System”.

I do not feel strongly about it except in the interests of accuracy. We have two lawyers and two different opinions and presumably the Government lawyer has a third opinion. It would be helpful if the Minister put on record why he believes that the date provided is appropriate.

Vernon Coaker (Labour, Gedling)

The hon. Member for Oxford, West and Abingdon’s comment about two lawyers with two different opinions made me laugh. That often happens, unfortunately. As always, it depends on which one is listened to and agreed with.

I shall make a couple of specific remarks and finish with some general points. Starting with the section on extradition, we all accept the need for extradition but it should be proportionate. I will say with respect to the later amendments on this that it is done in a proportionate way consistent with human rights legislation. We all agree with that. I was struck by the fact that both Liberty and the Bar Council saw nothing in the proposed new section that they regarded as a “titanic battle”—I think those were the words used. The debates around extradition and the fact that we have carefully tried to put improvements in the Bill, including clause 48, to improve how it works rather than to make huge changes were reflected in the fact that neither Liberty nor the Bar Council saw huge issues in this part of the Bill. I gently remind the hon. Gentleman of that important fact.

The hon. Member for Hornchurch asked how many additional arrests we thought there might be as a consequence of the measure. In 2007, 504 EAW arrests were made in the UK. As he said, Interpol or SOCA currently alert the UK to EAWs. It is estimated that the UK receives only about half of all EAW alerts, which is concerning. It is understood that alerts on the Schengen information system will have increased by 250 per cent. between 2006 and 2010, which is fairly significant. The estimated rise of 1,200 additional arrests is based on a range of data, including an EU paper on SIS growth. Therefore, we expect a significant increase in arrests as a result of becoming part of the SIS II. As we have talked about on other matters, providing it is done with due process, it should mean that we can help to catch criminals and stop them avoiding justice by moving across boundaries.

The hon. Gentleman asked about reciprocal arrangements. Arrangements are reciprocal and we receive and send EAW requests by e-mail.

James Brokenshire (Conservative, Hornchurch)

Proposed new subsection (2) appears to address electronic transmission. I hope that the Minister will come to that in a minute, but if electronic transmission is already happening, why is proposed new subsection (2) necessary?

Vernon Coaker (Labour, Gedling)

I will come to that in a little while. I will slightly chide the hon. Gentleman on the issue of costs to the police. We can quote today’s papers but the latest figures actually show that police numbers have gone up in some forces. They may have gone down in others, and I cannot remember exactly what the split is, but in approximately 20 forces the numbers went up and in approximately 20 they went down. Before anybody says that I do not know that there are 43 forces, I do, I am simply saying that it is approximately 20. If the Opposition were to form a Government, they would delegate budgets to local police forces that would then determine the best use of those resources, unless they intend to dictate exactly what numbers the forces should have. The hon. Gentleman makes an interesting political point but, according to the latest figures, the numbers went up.

The hon. Gentleman raises a serious point about the additional burden of an increased number of EAWs, which the Metropolitan police also mentioned in its evidence. Frankly, it will be for local police forces to deal with the requests that they get under the new system. They will prioritise and deal with them in the same way that they prioritise and deal with all kinds of requests in the course of upholding law and order and tackling criminality in their own area. It will not be the case that additional resources will be provided for that.

The hon. Gentleman then went on to ask what can be done about the impact that immigrants from a particular country may have on an area. He used the example of Poland and the impact on an area. A new fund called the migration impact fund will be available in different areas from April. It will come from fees paid by people coming into the country and will be delegated to regional government offices, which will be responsible for distributing the money. In response to the hon. Member for Peterborough (Mr. Jackson), who asked a similar question about some of the impacts of migration on areas, I have suggested to the Cambridgeshire police force, for example, that the fund will be available.

The fund will not be for the police only. It will also be available to other local service providers, so that if there is an impact in an area from a particular country or group of migrants, they can bid for funds. As I said, there are no plans to increase police resources, but the migration impact fund will be available should people wish to apply for it.

I am looking for the answer to the question about 20 December. I am sure that it has arrived, but I cannot see it at the moment. Perhaps someone could help me out, as it has disappeared among the plethora of paper that I have. I will deal with the question; I have no doubt that the paper will appear.

The amendment seeks to remove a subsection of the clause that deals with the Schengen information system II, which allows law enforcement agencies in the UK to certify incoming European arrest warrants that are transmitted to the UK electronically but outside the SIS II. The provision that the amendment would remove mirrors a provision already contained in the Extradition Act 2003, which enables the UK to consider and certify a large number of European arrest warrants that are transmitted by e-mail.

When the UK connects to the second-generation Schengen information system, the vast majority of European arrest warrants will be transmitted via that database. This refers to the points made by the hon. Members for Oxford, West and Abingdon and for Hornchurch on subsection (2). However, countries that are not yet part of the SIS II network may wish to continue sending European arrest warrants by electronic means such as e-mail, and we may wish to do the same. Until the UK joins the SIS II, it is vital that law enforcement agencies continue to have the ability to certify arrest warrants that are sent electronically—in other words, by this means—and that includes any requests that we receive from countries that are not part of the SIS II and also arrest warrants that we may wish to send. Removing the power could have an impact on our ability to deal with criminals who move across borders.

In reply to the question from the hon. Member for Oxford, West and Abingdon about new subsection (6)(a), we agree that the correction needs to be made, but parliamentary counsel has confirmed that it can be dealt with as a printing correction, so no amendment is needed. I thank him for pointing that out.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I am grateful, and I take no credit because the correction was supplied to me. I suggested two changes, and I presume the Minister is referring to the one that retains the Council decision but moves it to the 20th instead of the 12th. I presume that that is the change that he is accepting, rather than the one that would move it to June 2007.

Vernon Coaker (Labour, Gedling)

Yes, that is correct, and I hope that it is helpful. It will be changed as a matter of drafting rather than as an amendment.

I think we all agree that the UK becoming a member of Schengen information system will be helpful. We need to continue to receive and transmit information by electronic means outside the new SIS II. I hope that the hon. Member for Hornchurch accepts that and that he will withdraw his amendment.

James Brokenshire (Conservative, Hornchurch)

I am grateful for the Minister’s helpful explanation and clarification. In the light of his comments, I beg to ask leave to withdraw the amendment.

Clause 50

Vernon Coaker (Labour, Gedling)

I beg to move amendment 212, in clause 50, page 63, line 6, leave out from “if” to “is charged” in line 8 and insert “—

(a) a person has been brought before the appropriate judge under section 4(3) or 6(2) but the extradition hearing has not begun; and

(b) the judge is informed that the person”.

Hugh Bayley (Labour, City of York)

With this it will be convenient to take Government amendments 213 to 223.

Vernon Coaker (Labour, Gedling)

The Extradition Act 2003 provides for the judge presiding over an extradition hearing to defer the proceedings when the person is being prosecuted or is serving a sentence in the UK. In most cases, that will prove to be unproblematic, but there is a loophole in the law because if the requested person consents to extradition, the 2003 Act provides for there to be no extradition hearing or for any such hearing to be brought to an end. That means that if an individual has consented to extradition, it is not possible for the extradition proceedings to be deferred until the conclusion of domestic proceedings or until a UK sentence has been served. In practice, it could be possible for someone to avoid justice in the UK by consenting to extradition.

Clauses 50 and 51 address that problem by allowing the judge to defer proceedings on an extradition request at any point from the date of arrest until the start of the extradition hearing. Government amendments 212 to 223 make some minor changes to ensure that the provisions are fully effective. The Committee will note that the 12 amendments consist of six identical amendments to each of the two parts of the 2003 Act, part 1 of which deals with extradition requests from EU territories and part 2 of which concerns requests from non-EU territories.

Notably, the amendments will ensure that when the extradition court adjourns consideration of an extradition request until a UK sentence has been served, it does not have to deal with a remand hearing every 28 days. That mirrors the approach in sections 23 and 89 of the 2003 Act and avoids the court having to schedule unnecessary hearings when someone whose extradition has been deferred is serving a lengthy custodial sentence in the UK. The amendments will ensure that the framework in place to deal with deferring an extradition request is robust, fair and effective.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I wish to raise a point on behalf of Justice relating to how the Bill amends to the Extradition Act in relation to the detail of a sentence that has been served. The matter is covered by clause 50, and I believe that the point remains relevant despite the Government’s amendments.

The Bill’s amendments to sections of the Extradition Act would replace the current deferral period, which is until the sentence has been served, with:

“until the person is released from detention pursuant to the sentence (whether on licence or otherwise).”

If a person is released from custody on licence, their sentence has not been served and they are subject to recall. A licence can be made subject to any number of conditions, and where a condition is breached the prisoner can be recalled to prison. Furthermore, the insertion of “or otherwise” is worryingly vague; in that form, it could encompass temporary release. Is the wording as drafted appropriate, since it gives a finite period? Will the Minister comment on that concern?

In a separate point, neither the current provisions nor the Government’s proposals indicate when a judge should exercise his or her power to defer. For example, when a person is already serving a sentence of imprisonment, one could argue that it should not be disrupted unless that person consents or the issuing state agrees to the person serving their sentence in the UK. It is not clear whether the Government are giving the court an indication of what it should do in that respect.

Vernon Coaker (Labour, Gedling)

The hon. Gentleman’s last point is a matter for the court to determine. The provision is not prescriptive; the hon. Gentleman has read the Bill and the clause’s wording, which is that “the judge may order”. It is not a case of the judge must do this or that; there is flexibility. Let me take the judicial side of the argument by stating that it is a matter for the judiciary, and judicial oversight of the clause will determine what is appropriate in the circumstances of each individual case.

Under proposed new section (8A)(3) of the Extradition Act, a judge may order further proceedings to be deferred, but he does not have to if that does not serve the interests of justice. It is not the judge must, but that he may do so. Rather than letting the Government determine what is appropriate in the circumstances of every individual case at a particular point in proceedings, the clause gives the flexibility that I think the hon. Gentleman is looking for.

In response to the hon. Gentleman’s first point, the amended wording is necessary to ensure that it is absolutely clear that a decision on extradition will be deferred until someone falls to be released from detention, rather than until the end of any licensed period. The words “or otherwise” cover the position where someone falls to be released from custody, but is not released on licence. That is necessary to cover sentences where release from detention is unconditional. Clause 52(10) makes it plain that temporary release, which is properly described as a release pursuant to an intermittent custody order, is excluded from the scope of the provisions. I hope that the hon. Gentleman is satisfied with that explanation and able to support the clause.

Clause 51

Clause 53

James Brokenshire (Conservative, Hornchurch)

I beg to move amendment 253, in clause 53, page 65, line 27, at end insert

‘save that time during which the person was outside the United Kingdom shall be disregarded for the purposes of consideration for parole or early release in any event.’.

Hugh Bayley (Labour, City of York)

With this it will be convenient to discuss amendment 254, in clause 54, page 66, line 32, at end insert

‘save that time during which the person was outside the United Kingdom shall be disregarded for the purposes of consideration for parole or early release in any event.’.

James Brokenshire (Conservative, Hornchurch)

Clause 53 deals with the treatment of time served outside the UK following extradition to a category 1 territory where the person was already serving a sentence of imprisonment in this country. It provides that extradition will count as time served against the sentence in the UK where the person was extradited for the purposes of being prosecuted for an offence and was held in custody.

The effect of the provisions and, indeed, existing section 59 of the Extradition Act 2003, is to provide that sentences will be served, in effect, concurrently, rather than consecutively, should some form of custody be required in the third-party state. Through amendment 253, which is more a probing amendment than anything else, I seek to understand better and to question how the provision operates in relation to the Government’s early release scheme and, more generally, the rehabilitation of offenders and release on licence.

If the person extradited from the UK to an overseas territory is returned to the UK following the determination of proceedings in the overseas territory, what assessment is made of their suitability for early release? Obviously, the party will have been outside the jurisdiction, and there is a question whether normal early release provisions would apply. Equally, what information is provided to enable judgments on the need for release, which might need to be made almost instantaneously, to be undertaken, to enable other protective arrangements to be put in place, and to ensure that appropriate arrangements with probation services and so on are likely to be adhered to properly?

Subsection (4) talks about the person’s period in custody in the overseas territory counting. Is the intention that there should be any broad equivalence of the type of custody involved? The Minister will accept that there may be a difference in the nature of the custody that will be taken into account for someone being released from a category B prison on extradition to a third party state. If we are to try to rehabilitate to prevent reoffending, appropriate rehabilitative systems need to be in place. If extradition is taking place part-way through a sentence, how does that interrelate with rehabilitative programmes and with the Government’s early release scheme?

Vernon Coaker (Labour, Gedling)

The hon. Gentleman seeks, through his amendments, to make it clear that, if a person serving a sentence in the UK is temporarily surrendered to another country to face criminal proceedings, any time spent outside the UK will not fall to be counted in calculating the date on which they may be eligible for parole or early release once they are returned here to serve the remainder of their UK sentence.

I understand why hon. Members are concerned to ensure that time spent outside the UK does not fall to be deducted from someone’s UK sentence. It would clearly be wrong if time a guilty man spent in custody facing foreign criminal proceedings or serving an overseas sentence fell to be deducted from the UK sentence, as this would, in effect, allow them to double count their spent in custody outside the UK.

I agree with the hon. Gentleman, but the amendment is unnecessary as the clause already makes it clear that time spent in custody overseas will not count towards a UK sentence and will therefore not affect the date on which parole or early release falls to be considered. The only exception would be where someone has been temporarily surrendered for the purposes of a trial in another country and held in custody and is subsequently found to be not guilty. In such a situation, I am sure that the hon. Gentleman would agree that it is right and proper that the period spent in custody overseas should be deducted from the UK sentence.

I agree with the hon. Gentleman’s point, but do not feel that the amendment is necessary, so I ask him to beg leave to withdraw it.

Nicholas Winterton (Conservative, Macclesfield)

I remind the Committee that with this amendment, we are considering amendment 254, in clause 54, page 66, line 32, at end insert

‘save that time during which the person was outside the United Kingdom shall be disregarded for the purposes of consideration for parole or early release in any event.’.

As my co-Chairman Hugh Bayley no doubt said to the Committee this morning, may I welcome you back from a short half-term recess? I spent most of the time in Namibia, which was previously German South-West Africa. It was a most enjoyable Commonwealth Parliamentary Association visit and I am reinvigorated to preside over the remaining stages—all except for one—of this Public Bill Committee. I hope that all members of the Committee had a very restful and enjoyable recess; I am sure that Ministers did and I express the same hope for members of the Opposition parties.

I gather that the Minister was responding to a debate on amendment 253 and, according to those who advise me, I believe that he was expressing the hope that the Opposition spokesman might consider withdrawing his amendment. Therefore, I ask the Minister of State, Vernon Coaker, to complete his remarks.

Vernon Coaker (Labour, Gedling)

I have some further information that may be of benefit to the hon. Members for Oxford, West and Abingdon (Dr. Harris) and for Hornchurch (James Brokenshire), in answer to the questions that they put earlier on our debate on amendment 253.

First, I want to thank the hon. Member for Oxford, West and Abingdon—no doubt, he will intervene if I do not fully answer the comments that he made—for highlighting the error in clause 48(6)(a), which refers to

“the Council Decision on the establishment, operation and use of the second generation Schengen Information System of 12 December 2006”.

We have looked into the issue and we will amend subsection 6(a), so that it refers to the Council Decision on the establishment, operation and use of the second generation Schengen information system of 12 June 2007. That change can be made by way of printing, so I am advised by parliamentary counsel that there is no need for an amendment.

At the end of the previous sitting, I was responding to the hon. Member for Hornchurch, who raised a particularly important point that we must clarify; I thank him again for the helpful points that he made. I was explaining that, where someone has been extradited to an EU member state before the end of their UK sentence, clause 53 makes it clear that time spent in custody overseas will only fall to be deducted from the relevant UK sentence where the person in question has been extradited to face trial and has then been acquitted of all charges.

However, where time falls to be deducted from a UK sentence, as the hon. Member for Hornchurch rightly pointed out, it is possible for someone who was extradited at a time when they were serving the custodial period of any sentence to return to the UK after the date on which they would ordinarily have been released on licence. The reassurance that I think the hon. Member for Hornchurch is seeking in tabling this amendment is that, where this situation arises, a person returning to the UK would not be automatically released into the community without proper consideration being given to the terms of their release. I am pleased to be able to reassure him that that certainly will not be the case. Proposed new section 59(6)(b), which would be inserted into the Extradition Act 2003 by clause 53, makes it clear that where a person who has been extradited while in custody returns to the UK and is entitled to be released on licence, they are

“liable to be detained...by a constable or immigration officer”

so that they can then be formally released.

The purpose of this limited period of detention is to meet the need that the hon. Member for Hornchurch has flagged up; that is, to ensure that all the usual procedures that must be carefully followed before someone is released on licence are followed where a person who has been extradited returns to the UK. Crucially, that will allow the authorities to ensure that the conditions of the licence fit the offender and that all the relevant bodies charged with dealing with offenders after release are aware of the situation. While clause 53 would allow someone to be detained in order for them to be released on licence, detention would only be for as long as was strictly necessary in order for the person to be released.

That was raised by Liberty in the public evidence sessions, and I want to make it absolutely clear that the purpose of detention here is solely in order for the person to have their licence imposed or for them to be released. However, this is an important point and I will consider whether we need to do something further. Effectively, we are detaining someone who has come back and who, had they been serving their sentence in the UK, would already have been released on licence. Clearly, detaining someone in that situation meets the public policy need of ensuring that the conditions of a licence are put in place. There is an issue about making sure that any detention needed to fulfil those licence conditions is as short as possible. While that is implicit in the Bill, and I have made it explicit in my remarks in Committee, the question is whether it should be explicit in the Bill. I think I need to reflect on that further as the Bill makes progress. I hope those remarks have helped the hon. Member for Hornchurch and that he will consider withdrawing his amendment.

James Brokenshire (Conservative, Hornchurch)

I thank the Minister for his helpful response. He has highlighted the application of new section 59(6)(b), and he has made some points which clarify and explain the intent behind that provision and how it interacts with other provisions, including the need to consider any public protection issues and whether a licence is appropriate, and the need to ensure that such periods of detention are expressly for that purpose.

That is an important clarification and I am grateful to the Minister for putting that on the record. Equally, it would be helpful to have some express clarification for a court or anyone else seeking to interpret the Bill, and I accept what he said about reflecting on that. We look forward to seeing what appears on Report. I beg to ask leave to withdraw the amendment.

Vernon Coaker (Labour, Gedling)

I beg to move amendment 224, in clause 53, page 66, line 6, leave out ‘or section 28 of the Crime (Sentences) Act 1997’.

Nicholas Winterton (Conservative, Macclesfield)

With this it will be convenient to consider Government amendments 225 to 229.

Vernon Coaker (Labour, Gedling)

I shall be brief. Essentially, tackling international and transnational crime is a key priority for all of us. One consequence of the increasingly transnational nature of modern crime is that cases may arise in which an individual whose extradition is requested by one country is, as we have just discussed, serving a prison sentence or facing criminal proceedings in the country to which a request for extradition is made. Situations also arise where a country will only extradite its own national on the express undertaking of the UK that the person will be returned to serve any sentence imposed in the UK in the extraditing country.

Clauses 53, 54 and 55 set out an efficient and effective framework for dealing with cases of this kind. As the Committee will no doubt appreciate, it is vital that this framework is fully compliant with sentencing legislation in Scotland and Northern Ireland. To achieve that, these six amendments introduce two minor changes which are replicated for each of the three clauses. That will ensure that the provisions are fully effective in both Scotland and Northern Ireland.

Clause 54

Clause 55

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I beg to move amendment 72, in clause 55, page 70, line 3, leave out

‘the Secretary of State is not satisfied that the return is compatible’

and insert

‘to do so would be incompatible’.

Nicholas Winterton (Conservative, Macclesfield)

With this it will be convenient to discuss the following: amendment 73, in clause 55, page 70, line 5, after ‘1998’, insert

‘or any other international treaty which the United Kingdom is a party to or would be contrary to the interests of justice.’.

Amendment 74, in clause 55, page 70, line 5, at end insert—

‘(1A) If subsection (1) applies—

(a) an undertaking to return a person to a territory given under section 153A or 153C, and

(b) any power given under section 153A and 153C by reference to the undertaking are of no effect.’.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I am pleased to be able to speak to these amendments. First, I wish to raise a couple of concerns about the structure of the extradition clauses, of which clause 55 is, I think, the most important. I would be grateful if the Minister could give me some reassurance.

The Extradition Act 2003 was not particularly controversial in the House but it attracted some controversy at that time, as it was a way of implementing the European arrest warrant. Part of the basis of that legislation, and of this Bill, is that there is no need for a UK court, when it receives notice of a European arrest warrant, to look behind that application for prima facia evidence or to have regard to the need for dual criminality. In other words, it is perfectly possible, by design, that someone should be extradited for an offence under a European arrest warrant to a country where that offence is not considered an offence. That produces problems and leads to legal cases.

Such applications can create problems not only for the individuals concerned and their human rights, but for our courts. For example, the application could be vague. There have been examples in the press of applications for swindling, computer offences and speech offences such as xenophobia and incitement to hatred. Only incitement to religious hatred is an offence without intent in this country and there are high thresholds for other incitement offences. Is the Minister satisfied that it is reasonable to base a clause on a presumption that all EU member states that are subject to the European arrest warrant have fair laws and processes?

For example, we have specifically decided that holocaust denial, however odious, will not be made a criminal offence, so is it appropriate that we make it possible for other EU member states to seek to extradite for such an offence someone who is not a citizen of their country and who has not published in their country except on the internet? The Minister will be aware of the controversy over the case of Dr. Toben, in which the magistrates in Westminster dismissed the application, citing vagueness, and in the end he was not extradited only because the German Government decided not to appeal to the High Court. Is it right that we should have legislation that fails to make it clear that that is not the sort of case that is appropriate for extradition? Speech offences are not offences in this country, so there is no dual criminality, and what about cases in which a country seeks the extradition of a citizen of another country—potentially a British citizen—for publishing certain material? I would be grateful if the Minister clarified that, because otherwise we will have to come back to that issue at a later stage to debate more specific amendments.

The matter is made worse by the fact that under the 2003 Act, as I understand it, the Home Secretary may by Order in Council extend the provisions to non-EU countries, such as Azerbaijan, Georgia and the Russian Federation, which have all benefited from such Orders in Council. There is a significant human rights concern underlying the whole framework of the legislation.

I will now turn to amendments 72, 73 and 74, the aims of which will be apparent to Members, and outline them briefly, because we need to make progress. They seek to remove the subjective view of the Secretary of State on the question of whether a return would be incompatible with the meaning of the Human Rights Act 1998. They would do several things. First, they would make that decision the result of an objective test so that the question of whether the Secretary of State is satisfied is not simply the opinion of the Secretary of State.

Secondly, the amendments would give full access to the courts and not simply access to review that decision by judicial review, which is not the ideal way in which to raise issues of fact that go behind the decision, although the Minister might take a different view, as the Government often do, depending on the case. Indeed, when the Government are defending a judicial review, they often say that it is a matter of deciding whether the process is wrong or whether the decision is so unreasonable as to be an abuse of process. When someone is facing extradition to a country where we cannot be sure that they will be looked after in compliance with obligations that we have made, it must be reasonable that facts should be clearly testable in court.

The amendments seek to provide recognition not only for the European convention rights, but for other international treaties. An example is the United Nations convention on refugees, which was established after the second world war to provide a haven for people who might otherwise be persecuted, perhaps by prosecution, in another country.

The amendments also include a provision that would require consideration to be given to the wider interests of justice. I will give two examples in order to save time. The first example is an undertaking that is given prior to all the knowledge becoming available. Once a person is in this country, it may become clear that they have a medical condition, for example, that makes them particularly vulnerable and would put them at risk if they were extradited to the country to which the Secretary of State has given an undertaking to extradite them. A topical example is the well-known case of Gary McKinnon, who has a mental health disorder that would make him particularly vulnerable if he were transferred to an American supermax prison. We need to be capable, within our law, of giving consideration to that issue, because if someone is made to suffer on the basis of being extradited to a country or is sent back having been extradited here, that is not in the interests of justice and might not be compliant with their human rights. That is not a direct example and I am not seeking to raise that case specifically.

Vernon Coaker (Labour, Gedling)

I am concerned about our discussing the Gary McKinnon case, because it is currently before the courts.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

As I understand it, we are discussing legislation. I am not asking the Minister to give an opinion on that case, but we are entitled to raise cases under the sub judice rule.

Nicholas Winterton (Conservative, Macclesfield)

Order. May I tell the hon. Member for Oxford, West and Abingdon that, as long as he does not make specific reference to that case, which is before the courts, he is quite in order to raise the general principle? He must not refer to a specific case in any detail.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I am grateful, Sir Nicholas. I hope that I was careful to state that I was referring to a case such as the one involving Gary McKinnon. I was not talking about how that particular case applies, because the facts differ in the clause under discussion; we are talking about someone who is extradited and brought to this country with a pledge that they will then be returned. I am referring to cases involving a medical condition, and the Gary McKinnon case is good example, because it shows how different countries might treat a medical condition. I will move swiftly on, as long as the Minister understands that there is nothing in the clause that recognises a change in a person’s medical condition. Neither does the undertaking to remove a person to another country make such a change relevant for consideration.

The second example relates to when conditions in the country to which a person would be returned have changed since they first came here. Again, that is not made clear in the clause, and it would not be in the interests of justice for someone to be sent back to a country where there has been a substantial change in circumstances and where a fair trial, the person’s welfare, or, in the case of a UK citizen, the oversight of their welfare cannot be guaranteed.

Those are the concerns raised by Liberty in relation to the clause. Furthermore, without being privy to the correspondence of the Joint Committee on Human Rights—on which I serve with the Minister—I believe that the clause will exercise that Committee simply because it allows subjective tests, such as the Secretary of State being satisfied, and only refers to one of the many treaties to which we are party. It is appropriate to leave it there, and I am grateful to the Minister for listening.

James Brokenshire (Conservative, Hornchurch)

The amendments tabled by the hon. Member for Oxford, West and Abingdon reflect, as he said, Liberty’s concerns about clause 55. Amendment 72 would replace the provision that the Secretary of State is not satisfied that the return is compatible with the European convention on human rights with a provision that such a return would be incompatible with the convention. In other words, and as the hon. Gentleman said, Liberty wish to replace a subjective requirement with an objective test.

While I fully recognise and agree that the provision should be compliant with the European convention, I question the application of these amendments and the effect they would have. Even if amendment 72 were made, if power is vested in the Secretary of State, notwithstanding that the wording would have changed and it would be compliant with the relevant convention or treaty rights, on the face of it, the assessment would potentially still be made by the Secretary of State.

I will make a further point on that because it is the sort of drafting issue with which we are concerned. While I fully respect and understand the intention behind the amendments, legal advice would need to be provided to an individual at some stage, and a judgment would have to be made on whether or not it was compliant. Therefore, without seeking to undermine the intent behind the amendments in any way, I wonder whether they will have the import that has been suggested. In all circumstances, legal advice that relies on precedent in case law provides a judgment or assessment. Therefore, I am not certain how far the changes take us forward.

Justice made an ancillary point on this issue:

“It is disappointing that despite the aims of the Framework Decision to abolish extradition between EU Member States and to replace this with a system of surrender through judicial process, the Secretary of State is to be given this power rather than a judge at a hearing. We consider that the opportunity should be taken to amend the provisions to allow a hearing before a judge who will consider whether an undertaking should be given, at which the consent, or at a minimum the representations of the affected person can be considered. Without such a measure the scheme is at risk of interfering with the right to a fair hearing under article 6 ECHR.”

There is an issue of practicality and balance. Justice argues that a court hearing should be appropriate in any event. In other words, it takes the line of argument that the hon. Member for Oxford, West and Abingdon has set out from Liberty’s paper to its natural conclusion and says that the matter should rest with the court rather than with the Secretary of State.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I saw the Justice briefing. In taking out “the Secretary of State”, I was not inserting “the judge”. I believe that that is implicit because without having to wait for the Secretary of State to announce whether they are satisfied, the decision can be rolled into the same series of hearings and deliberations that are held for those contesting their extradition. That is my understanding, but it needs confirmation as I am not a lawyer.

James Brokenshire (Conservative, Hornchurch)

The hon. Gentleman’s intervention is helpful because it allows us to understand the purpose of his amendments more clearly. There is a question of balance and appropriateness in considering the application of these provisions. In my view, the matter should reside with the Secretary of State rather than automatically going to a court for determination. It will be interesting to hear the Minister’s response and his views on compliance with the relevant convention rights. That will inform the debate further.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

May I point out something that I might not have done justice to in my original remarks? Amendment 74 is important and I would like a specific response from the Minister. Does the hon. Member for Hornchurch agree that the sort of wording in amendment 74 must be added to proposed new section 153D(1) to ensure that there is no discretion because of the words:

“Nothing ... requires the return of a person”?

If the original wording means that the Human Rights Act 1998 is likely to be breached, the powers will be nullified.

James Brokenshire (Conservative, Hornchurch)

It is interesting to hear what the hon. Gentleman says. I respect the concern expressed by Liberty on compliance with convention rights, which he has articulated. It is important to ensure that there is clarity in the Bill. The current wording expresses the judgment and the need for compliance with the Human Rights Act. However, Justice and Liberty have raised interesting questions and it will be interesting to hear the Minister’s response and why he believes the provisions are compliant with convention rules and will not be not subject to challenge.

Vernon Coaker (Labour, Gedling)

I thought that those were very good remarks. To do what the hon. Member for Oxford, West and Abingdon suggests would be illegal. The Secretary of State cannot ignore human rights issues in making a judgment to send somebody back.

I will start with amendment 74, which puts us slightly out of kilter, but it is where the debate finished. That amendment would oblige the Secretary of State not to issue an undertaking when it is found that a person’s removal would breach their human rights. Who would disagree with that? We agree with the purpose of the amendment, but it is unnecessary to state explicitly that the Secretary of State cannot extradite or send someone back where their human rights will be breached, which is what amendment 74 does.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

It is not that.

Vernon Coaker (Labour, Gedling)

That is what amendment 74 does. All I am saying is that I do not disagree with it, but that it cannot be done because it is illegal.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I probably did not do justice to amendment 74, so I will be clear about what it seeks to do in addition to the statement of the obvious that the Minister has identified. It seeks to ensure that the powers set out in the Bill that are consequential on the undertaking—for example, the power to keep a person in custody until return—fall away if the undertaking cannot be complied with. In other words, they are null and void. It does not necessarily follow from this framework that those powers are null and void even if they are not exercised. I think the amendment is a tidier way than the current wording of making that clear. It is not because I failed to grasp the obvious.

Vernon Coaker (Labour, Gedling)

I apologise. I was not trying to be disrespectful to the hon. Gentleman. I take the point he is trying to make that what he has pointed out could be consequential to all of this. That does not alter the fact that it is unnecessary. Nobody disagrees with the point that has been made.

Sir Nicholas, if you remember in the evidence sessions, I was delighted with the inclusion of new section 153D in the Bill. I sometimes go to the Joint Committee on Human Rights and have a good relationship with it. The hon. Gentleman knows that I spend a lot of time defending the need for human rights to be protected in legislation. The Home Office and I have had many fruitful discussions with the JCHR to try to do better with respect to human rights compliance. One reason for this provision is the fact that I—along with the Home Office—am increasingly determined to ensure that human rights provisions are contained explicitly within legislation.

The hon. Gentleman was here this morning when I mentioned that Liberty had said that though some improvements, debates and discussions might be needed—which is what we are having—this is not a titanic battle of principle. This is not necessarily a decision to extradite. It is to return someone pursuant to an undertaking. Any decision to extradite—or any of these matters—has to be compliant with the ECHR and the Human Rights Act. As for the involvement of the courts—to which the hon. Members for Oxford, West and Abingdon and for Hornchurch referred—the Secretary of State is accountable to the courts of the land. Although he or she may make the initial judgment, such decisions, as we have seen in the past, can be judicially reviewed. There has to be an undertaking that everything done is consistent with that.

A couple of other points were made by the hon. Member for Oxford, West and Abingdon. The terms of proposed new section 153D make it clear that a person cannot be returned pursuant to a temporary surrender undertaken where to do so would breach the ECHR. It is explicitly there. Whether a return would breach the ECHR would be considered at the moment of return. So any matters arising after extradition to the UK, for example regime change, would be taken into account at that time. Again, some of the things that the hon. Gentleman is pointing out—such as, what happens if this happens—are partly what would be used to inform the decisions made as to whether somebody should be returned. As to the idea of leaving this to the discretion of the Secretary of State, the Secretary of State does not have any discretion when it comes to acting in a way that is ECHR-compliant. She has to act in that way. I became slightly agitated because it is unlawful to do otherwise. This is the point that I was emphatically trying to make to the hon. Gentleman.

As he mentioned, dual criminality is the principle that the crimes for which a person is sought must be offences in both countries for extradition to take place. He will know that there are 32 categories of offence—the most serious cases—for which dual criminality is not needed for a European arrest warrant to be issued. He mentioned the case of Dr. Toben, who was the subject of an EAW request from Germany for holocaust denial and was arrested at Heathrow in October 2008. Germany sought his extradition under the offences in the EAW for which dual criminality does not apply: xenophobia, racism and computer-related crime. The hon. Gentleman will also know that Dr. Toben was ultimately discharged by the courts. The judicial process worked.

The principle of mutual recognition underpins law enforcement instruments within the EU, including the EAW, and key to that is member states’ trust of each others’ legal systems. I have said to his hon. Friend the Member for Chesterfield that if the hon. Gentleman became an EU Minister, he would have to be very careful about saying that he did not trust the legal systems of other EU members. One of the conditions of becoming an EU member is having a legal system based on the principles that we all expect. None the less, we do not have to return somebody. The terms of the Extradition Act 2003 make it clear that if there are concerns about the fairness of a court system in a country, section 20 prohibits surrender to another member state.

I ask the Committee to resist amendments 72 and 74. I do not see the need for them and they are unnecessary as compliance with the ECHR is implicit in the Bill. To show that I am not only kind to the main Opposition spokesmen, I will say that the hon. Member for Oxford, West and Abingdon has a point with amendment 73. I hope that he relays this to his colleagues on the Joint Committee on Human Rights. The amendment refers to other international treaties, which should be taken into account when looking at issues of temporary surrender, extradition and so on. In my view, the need to take into account other treaty obligations, for example, the UN refugee convention, is implicit in the terms of the ECHR. However, I will look at what amendment 73 suggests, which is whether the Bill needs to be more explicit about the fact that as well as complying with ECHR regulations and requirements, some other conventions should be adhered to.

Although I was fairly robust on amendments 72 and 74 and the general points about compliance with the ECHR, I hope that the esteemed member of the JCHR will look at what I have said about amendment 73—I am frightened of the JCHR. I think that the hon. Gentleman has an important point about what may need to be in the Bill. Human rights considerations are extremely important to me, which is why the proposed new section is in the Bill. Everything that he is seeking to achieve through amendments 72 and 74 is already achieved through the provisions in the Bill. With those remarks, I ask him to consider withdrawing the amendment.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Flattery is very helpful with me, but cuts no ice with the JCHR, so the Minister will still have to face the music there in due course. Obviously, I welcome what he has just said about amendment 73 and I will come on to that.

I would first like to make a point regarding his response to my earlier points. Membership of the EU does not, even in the Liberal Democrats, involve the suspension of critical faculties; just as other countries, and indeed the Council of Europe, can be critical of some of our laws, for example, on terror. Just because we are a member of the Council of Europe does not mean that, by definition, everything that we do is acceptable. I do not think therefore—I am not suggesting the Minister said this in these terms—that simply accepting someone as a new EU member means that there is no appraisal to be made on an individual case. I am not saying that he said that there was no appraisal, but the point is that we need to keep our wits about us.

The second point relates to Dr. Toben as an example of that. Although he escaped extradition, it was only because the Germans decided not to press their appeal in the High Court. So, it was not that the court overruled them on the basis of it not being a good enough charge; nor was it on the issue of the offence that he was charged with being extraterritorial because of a website hosted in Australia; it was because they chose not to, and I fear that there will be other people who will be caught by that, but I accept that it is not a matter for today.

On the issues raised by the amendments, the Minister has said—three times now—that he notes that Liberty has said that there is no titanic battle on this part of the Bill, and I think that is true. However, I just hope that we come to a time when that will be obvious, and the Minister is wise to rejoice, or express relief, that he is not in a pitched battle with human rights organisations over this part of the Bill. I think that is—I do not want to be too partisan about this—more a judgment on some of the other legislation where he has been engaged with them in such a contest, rather than necessarily saying that everything in the Bill is fine.

Vernon Coaker (Labour, Gedling)

Does the hon. Gentleman think that it is actually because we have included proposed new section 153D on the face of the Bill? Does he not also think that that is a part of why, perhaps, compared with some of the battles that have been fought in the past, they have not been fought as hard on this specific part of the Bill?

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

The Minister is very keen to get recognition for the inclusion of proposed new section 153D. If it was not there, the situation would be worse and it is a worthy step forward. I accept that and I am sure that others will note it too, including in the other place—of course I accept that.

Turning to the descriptions he has made of the three amendments, I would like to deal with what the hon. Gentleman said, briefly, on amendment 72. He says that the Home Secretary has no discretion as to whether to abide by the convention rights, and of course that is true. However, he still has to accept a subjective provision here, because the Secretary of State merely—I use that word appropriately and deliberately—has to satisfy herself that

“the return is compatible with the convention rights”.

As soon as she does, that is it, subject only to judicial review and I do not think he addressed the point that relying on judicial review of Executive action or Executive decision-making is not satisfactory. We have just read about the appalling case of the gay asylum seeker who was sent back as a result of Executive action. Yes, the courts have intervened post-facto to argue that that was wrong and have insisted that the Home Department do what they can to get that person back—we do not know the name or country for that person’s own protection—but that is an example of a decision being judicially reviewable. That can only be done while they are in the country and it is not an ideal situation. So, although I will not press amendment 72 to a vote, I do not accept that the subjective test is adequate and the Minister will have to come back with stronger arguments at a later stage of the Bill.

Amendment 74 got some rough treatment from the Minister. I am not offended by that. I did not make the point clearly enough; that is my fault, not Liberty’s, and I take responsibility. Liberty’s point is that the proposed new section 153D states:

“Nothing in section 153A or 153C requires the return of a person”

in these cases. But the question is: what about the powers that have been taken after an undertaking has been given? It is not absolutely crystal clear that they become null and void at that point. I am not suggesting that the Government will return the person, given the provisions in proposed new section 153D.

Nicholas Winterton (Conservative, Macclesfield)

It is 15 minutes since we broke to vote in the House on a private Member’s Bill; you will see the result on the monitor. The hon. Member for Oxford, West and Abingdon was giving us the benefit of his advice regarding his amendment and I call him to resume his address.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I am grateful to have returned from what I understand was a rare Liberal Democrat victory in the Chamber. We are grateful for the support of those who shared our view on that Bill.

Regarding amendment 74, I was again pointing out to the Minister my concern, which I do not think he has met, that although it is clear that no return would take place if the Secretary of State were not satisfied that the return were compatible with convention rights, it is not clear what happens to the person. Certain things will have flown from the undertaking, which is now vitiated by the Secretary of State’s ruling on convention rights, and I ask the Minister to consider further, perhaps in correspondence and at least before the next stage of the Bill, whether there is absolute clarity about what happens to the person left dangling in respect of either proposed new section 153A or proposed new section 153C. In one of those scenarios it is more likely that they will already be in prison, serving a sentence here perhaps.

Finally, turning to amendment 73, I am grateful to the Minister for recognising that it might be appropriate to mention the refugee convention in the Bill, after the Human Rights Act. I will bank that, but it begs the question: why not the international covenant on civil and political rights, for example, which covers similar important rights?

Vernon Coaker (Labour, Gedling)

I used the refugee convention as an example; I am not saying that that is the only thing that we should use. I will consider whether we should put something in the Bill, and it may be that we will use two things. With respect, I have said to the hon. Gentleman that the refugee convention strikes me as an example that should be in the Bill.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I am grateful for that clarification and I will not comment further on the matter. I accept the Minister’s point that changes in a country will be taken into account because the decision has to be made before return. However, I will go away and reflect on the last part of amendment 74, as it still concerns me that there may be other circumstances that do not go as far as to affect convention rights or to sufficiently persuade a Home Secretary or this Home Secretary, but which might still be contrary to the interests of justice. There can be no harm in the Government giving themselves some wriggle room here, as long as the Home Secretary does not abuse it. I cannot conceive of a Home Secretary willingly not wanting to live up to the undertakings that they have given, which can be important for diplomatic relations. Having said all that, I want to express again my gratefulness to the Minister for engaging in the debate and I beg to ask leave to withdraw the amendment.

Clause 58

Vernon Coaker (Labour, Gedling)

I beg to move amendment 230, in clause 58, page 71, leave out lines 18 and 19 and insert—

‘(2) For subsections (2) and (3) substitute—

“(2) The person must be brought before the appropriate judge within 48 hours starting with the time when the person is arrested.

(2A) The documents specified in subsection (4) must be produced to the judge within 48 hours starting with the time when the person is arrested but this is subject to any extension under subsection (3B).

(2B) Subsection (3) applies if—

(a) the person has been brought before the judge in compliance with subsection (2); but

(b) documents have not been produced to the judge in compliance with subsection (2A).

(3) The person must be brought before the judge when the documents are produced to the judge.”’.

Nicholas Winterton (Conservative, Macclesfield)

With this it will be convenient to discuss Government amendments 231 to 238.

Vernon Coaker (Labour, Gedling)

The amendment deals with provisional arrest. I should like to make some introductory remarks and then respond to questions that hon. Members may have. Provisional arrest is an important tool in the fight against serious and organised crime. There are cases, although rare, in which the urgency of the situation and the complexity of the case, lead member states to ask one another to arrest someone before the full European arrest warrant has been issued. Where the UK receives such a request, and there are reasonable grounds for believing that the full European arrest warrant has been or will be issued, it is open to UK law enforcement officials to arrest the person in question.

When someone is arrested under the provisional arrest powers found in section 5 of the Extradition Act 2003, section 6 requires that the person be brought before a court and a full European arrest warrant provided to the judge within 48 hours of arrest. While in the vast majority of cases this will prove unproblematic, there are two scenarios where the right time limits contained in the Act can cause problems. The first of these is where the 48-hour period runs over a weekend or a public holiday. In that situation no court would be open before which the person in question can be brought. This could result in a serious criminal being able to avoid extradition simply because of the date on which they were arrested.

The second problem with the current provisions arises in very complex cases where the member state seeking extradition is simply unable to get the formal documents justifying extradition in order within that 48-hour period. Clause 58, as drafted, sought to address these problems by allowing an application for an extension of 48 hours to be sought to both the period within which the full documents must be provided and the period in which the person must be brought before the court.

On reflection I feel that there is better and fairer solution to these problems which Government amendment 230 and Government amendments 231 to 238 seek to provide. The first change to note is that it is no longer open to the requesting state to apply for an extension of the 48-hour period within which the person in question must be brought before a UK court as the sole problem we are addressing here is that arising where the 48-hour period falls over a weekend or a public holiday. I feel that the better approach is simply to exclude these days from the calculation of the 48-hour period. We see no reason why the person arrested should not be brought before a UK court within the original 48-hour period where it does not fall on a weekend or a public holiday. I hope that that is helpful because I certainly think it is a better way of doing it.

That change and the terms of the other amendments also mean that it is absolutely clear that in the very rare cases where there is a need to apply for an extension of the period for supplying the documents justifying extradition, such an application will always be made while the person who is arrested is present in court, whether in person or by live link, so that they may resist the application and be in a position to apply for bail. Again, I think that is a significant improvement on the clause as drafted. I hope that the Committee will feel that these amendments represent a careful and considered attempt to reduce the scope of the provisional arrest amendments so as to make absolutely sure that they strike the right balance between the need to safeguard the liberty of the subject while ensuring that the UK does everything possible to fight serious international crime.

James Brokenshire (Conservative, Hornchurch)

The Minister’s comments on the amendments are helpful. He will know that Liberty expressed concerns about why the clause was necessary and the proportionality of the provisions. His suggestion to clarify and restrict the ambit of the clause is helpful in addressing some of those issues.

It would be helpful for the Minister to address one further point. It is worth putting the concerns of Justice on the record. It states:

“A warrant can be transmitted electronically pursuant to section 204, thereby instantaneously and with the introduction of SISII, this will be the normal means of transmission. We consider it inconceivable that any scenario could justify an arrest without warrant, on reasonable belief that a warrant will arrive rather than an offence having been committed, and remand for 96 hours.”

Justice suggests that it should be more instantaneous. The Minister has explained that circumstances may arise that fall outside Justice’s concern that the instantaneous electronic transmission of warrants might lead to situations where documentation is awaited. It would be helpful to consider that. Any further clarification that the Minister can provide on Justice’s concerns over the additional time would be welcome.

If there is an increase in the speed of transmission through the Schengen information system or other forms of electronic transmission of appropriate documentation, it would be appropriate to make it clear that in one way we are moving in one direction and in another way we are moving in another.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I echo the hon. Gentleman’s view. He recognises, as do Justice and Liberty, the importance of article 5 of the European convention on human rights. Even though the Minister gave a good explanation of where we will be after we accept the amendments, as I am sure we will, those will also be subject to scrutiny against article 5. The hon. Member for Hornchurch made a good fist of analysing the areas that we will have to look at further. That said, I too welcome the amendments.

Vernon Coaker (Labour, Gedling)

I have tried with the amendments to address some of the points that have been made. Like everybody else, I do not like the idea of provisional arrests. We all agree that if we are not careful, such procedures might lead to an unacceptable erosion of liberty. There is a balance to be struck between the role of the state in protecting the public and the need for citizens to be protected against the encroachment of the state.

In answer to the hon. Member for Hornchurch, the issue is not the time taken to transmit the warrant, but the time taken to get the case together to make the request to the court in the member state. In any case, a UK court would grant an extension only when the documents could not reasonably have been provided within the original 48-hour period. If the requesting state had things sorted they would clearly be able to get the documents there. I think that I have answered his questions. I hope that the Committee will support the Government amendments.

Clause 59

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

As I understand it from the explanatory notes, the Government do not believe that article 6 applies to extradition hearings—that is, the right to a fair trial. Nevertheless, I still think it is necessary for the Government to provide on the record some justification of why it wants to move to giving the judge the power to provide for live-link directions. I question whether the Government are certain—given everything we have discussed—that article 6 does not apply to extradition hearings in respect of the ECHR and to ask in any event what the justifications are for this. I am sure the Minister has a justification, which he is ready to give.

Vernon Coaker (Labour, Gedling)

Article 6—as the hon. Member for Oxford, West and Abingdon knows because he knows the answer to the question—does not apply to extradition hearings.

Clauses 48 and 49 will provide further improvements to the European arrest warrant mechanism in the UK. It is predicted that access to the SIS II will enable law enforcement agencies in the UK to make an additional 1,200 arrests per year subject to these warrants, while the improvements to public safety that these clauses will provide are of great significance and importance. As the European arrest warrant is subject to judicial proceedings this will place a greater administrative burden on the court service. Clause 59 will in part address this problem by enabling live links to be used in extradition cases.

This amendment to the Extradition Act 2003 will mean that all initial and remand hearings can, at the direction of the appropriate judge—I hope that hon. Members heard that—take place via live link. This will not only provide greater efficiency when dealing with extradition hearings but also ensure that those subject to EAW and extradition requests do not need to make potentially lengthy journeys for very short extradition hearings. It is important to note that the subject of the request will continue to attend the substantive extradition hearing.

Furthermore, the clause makes it clear that the judge may not direct that the hearing take place via live link if he feels that the interests of justice will not be served. The interest of justice, I know, is something that the hon. Gentleman often wants read into the record, so I am doing so. The clause will ensure that the mechanism in place in the UK to deal with the EAW and extradition requests is both efficient in dealing with rising numbers of judicial proceedings and will ensure fairness to the subject of the request. I hope that helps the hon. Gentleman.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I am grateful to the Minister for reading in that issue about the interests of justice. He makes a very important point, which I will mention en passant as he did, that although article 6 does not apply and therefore the Human Rights Act does not apply here, there are interests of justice that might apply and force the court to make a different decision. That might also apply to the other parts of this Bill that we have just discussed. I think the Minister has dealt with the point I raised and I am grateful to him.

Vernon Coaker (Labour, Gedling)

I am glad that I gave way to the hon. Gentleman because I agree with the points he has made. They are now on the record and are important points that people who read our proceedings will be able to see.

Clause 60

David Ruffley (Conservative, Bury St Edmunds)

I beg to move amendment 292, in clause 60, page 74, line 26, after ‘officer’, insert

‘or a chief officer of another police force who has lead responsibility for security or serious and organised operations under any police force collaboration agreement relating to the area in which the aerodrome is situated’.

Nicholas Winterton (Conservative, Macclesfield)

With this it will be convenient to discuss the following: amendment 293, in clause 60, page 76, line 26, at end insert

‘or a chief officer of another police force who has lead responsibility for security or serious and organised operations under any police force collaboration agreement relating to the area in which the aerodrome is situated’.

Amendment 291, in clause 60, page 78, line 3, leave out from ‘who’ to first ‘the’ in line 4 and insert ‘represents’.

Government amendment 299.

David Ruffley (Conservative, Bury St Edmunds)

Welcome back from Namibia, Sir Nicholas. It is a pleasure to see you looking so refreshed and chairing the Committee with your usual verve, and indeed with even more verve after your recuperatory recess break.

Clause 60 and the clauses that follow relating to aviation security are important, but they are not without controversy, for reasons I will move on to in a moment. Clause 60 provides for the establishment, crucially, of a risk advisory group and a security executive group at aerodromes. Risk advisory groups will be required to produce a comprehensive risk report at the outset that will include analysis of risks to the aerodrome and make recommendations regarding the actions necessary to mitigate such risks. The membership of that RAG will include a representative of the aerodrome manager and a representative of the chief officer of police in that area as a minimum, and the manager of the aerodrome will have discretion to appoint such additional members as he considers necessary.

A risk report will be put together by that group, which will then be considered by a security executive group. The SEG is a different body in the sense that it has a different membership. It will make judgments on the security measures to be taken for the aerodrome and decide which party should be responsible for executing that security measure. Those decisions will form the content of the aerodrome security plan—ASP—which will formally document the security measures to be taken. The SEG’s membership is different from that of the RAG and will include, as a minimum, a representative of the aerodrome manager, representatives of the chief officer of police and the police authority of the relevant area and representatives of airlines operating at the airport—such people are not within the RAG.

On the face of it, clause 60 looks a little bureaucratic. Why do we need two groups, often with overlapping membership? My understanding is that the Minister, in drafting this, thought that there might be a conflict of interest in a body that on the one hand analyses risk and on the other hand has to pay for the measures that mitigate that risk. I assume that the reason for having two groups rather than one—the Minister may correct me if I am wrong—is that the risk analysis cannot be short-changed by the people making the decisions downgrading the risk because they do not want to pay for it. If my understanding is correct, those two groups are separate for that reason.

Jim Fitzpatrick (Labour, Poplar and Canning Town)

May I simplify the situation, at the invitation of the hon. Gentleman? The reason for the two groups is very much as he has described it. Previously, we often saw analysis and the design of a plan that was not put into action. The two separate groups have separate responsibilities: one designs the plan and the other implements it. In that instance, there is clear responsibility attributed to each.

David Ruffley (Conservative, Bury St Edmunds)

That was my understanding, and it is an important point to make, because members of the industry believe that it is overly bureaucratic. I can see the rationale, and the Minister has described it.

It is also important that a plan may specify that security stakeholders make payments to other security stakeholders in connection with the delivery of the plan, mitigating the risks that have been identified. That makes it a controversial clause. As most people do, I always follow the money. If one does that, one always discovers that people are sometimes loth to cough up, so there are issues that need to be teased out.

The explanatory notes on proposed new section 24AE(5) state:

“Although the police are not directly specified as a stakeholder to whom payments may be made, this subsection does not prevent an ASP from specifying payments to be made in respect of the police’s delivery of a security measure. However, the expectation is that details of such payments will be contained within a Police Services Agreement (PSA).”

That is another agreement to which we will have to be advertent, which, the notes explain,

“is an agreement made between an aerodrome manager, the Chief Officer of police and a representative of the police authority for the relevant area”.

The agreement will include the level of policing provided at the aerodrome; any payments to be made by the aerodrome’s manager; any accommodation facilities to be provided by the manager and so on.

I have already indicated that the measures are controversial. When the aviation security provisions were aired back in spring 2008, I think that it was suggested that they would be part of a transport security Bill. At that time, the Airport Operators Association’s chief executive warned that the Government should not expect a blank cheque from business when many regional airports and low-cost airlines were struggling with the economic downturn and higher fuel prices. That has been a recurrent theme in all the representations made to members of the Committee—certainly on our side—prior to our sittings.

The Sheffield Telegraph reported previous difficulties between South Yorkshire police and Robin Hood airport, where the airport

“will be forced to foot the bill for its policing under a new law proposed by the Government.”

The proposed changes are, in effect, the substance of the clause under discussion, and the Yorkshire Evening Post labelled them—I am not saying that I agree with this language—“a terror tax”. It reported:

“Leeds Bradford Airport will be slapped with a multi-million pound ‘terror tax’ under a new law proposed by the Government.

Legislation unveiled in yesterday’s Queen's Speech will see the airport forced to pay West Yorkshire Police for its growing policing costs.

The new law will transfer responsibility for ‘threat and risk analysis’ at regional airports—and for picking up the bill—from the local police force to the airport operator.”

I will not continue in such a critical vein, but that gives a sense of the debate taking place outside the Committee. It is a familiar debate and one expects such a set of arguments from aerodrome managers and airline operators who are worried about the transfer of cost.

In a comprehensive and balanced briefing to the Committee, Manchester Airports Group indicated three chief concerns with the proposals. One is cost, the second is value for money, and the third is the balance of strength in any ensuing negotiations between the two groups covered by the clause, namely airports and local police services.

On cost, under the current regime there are designated airports, such as that in Manchester, that already face a significant policing bill, first through business rates and secondly through direct payments to the police authority. MAG estimates that £9 million is paid to Greater Manchester police in policing costs, and a further £13 million in business rates. MAG argues that consideration should be given to the amount that airports currently cough up for policing costs at aerodromes, with business rates being an obvious example.

On value for money, MAG makes a crucial point, which is reflected in the amendments tabled by my hon. Friend the Member for Hornchurch and me. It says:

“The police do not provide an adequate breakdown of how the funding is spent, nor do they fully justify the levels of policing needed.”

That is a reference to the current regime. But following the logic of the alleged lack of transparency on the part of police forces who are currently providing policing services, the argument would seem equally valid to the new regime in the absence of assurances from the Minister and any changes to the clause. In short, the allegation is that there is a lack of transparency and accountability in current legislation, which is arguably not addressed in the Bill.

The third point that Manchester Airports Group makes is on the negotiating position of the police, which is strong vis-Ã -vis the airports, and it also relates to the second point about value for money. It states:

“When the figures are challenged by airports, the police can always cite ‘security reasons’ or ‘ACPO guidelines’ as being the rationale behind their demands, without having to fully explain or justify these.”

Before I come to the amendments, I should like to refer to one other important point raised by the Airport Operators Association. It challenges the suggestion that sometimes comes from the Government that a parallel should operate—an argument by analogy, as it were—between the policing of private property, such as a football stadium during football matches, where charges are levied on the football club or its owners to pay for policing costs on a Saturday afternoon, and the policing of airports. The suggestion is that the airports should pay just as readily as a football club for consuming policing services.

The Airport Operators Association take issue with that:

“Airports are different. Larger ones in particular are often referred to as ‘iconic targets’ and Chief Constables, who have a legal accountability for policing in their constabulary area, often have strong views about how airports should be policed.”

The idea that airports are different in kind from football stadiums seems a very good one. The concern expressed by the Airport Operators Association is shared by, among others, Virgin Atlantic, which makes a similar point.

I turn now to amendments 292, 293 and 291. Amendment 292 relates to RAGs, which include the chief officer of the relevant force. It makes it clear that it might also be the lead officer in any collaboration agreement that is delivering policing services to an airport. We had many debates on collaboration agreements under clause 5. There will be situations where there will be level 2 and level 3 crime, which is what aviation security is all about. Policing services might not be delivered by the police authority in whose boundary the aerodrome is situated. To take an example, Greater Manchester police deliver the services in the case of Manchester airport, which may be near your fine residence, Sir Nicholas.

Under a future Government after the Bill has come into force there might be a collaboration agreement right across the north-west for delivering airport aviation security services. It might be, for the sake of argument, that the Greater Manchester police is not the lead force. The chief constable who is responsible for making the decisions, who would be on the RAG under this clause, might be a chief constable in a neighbouring area. Amendment 292 endeavours to say that the RAG should also include a chief officer of another force who has lead responsibility for security or serious organised operations under any collaboration agreement that might be enforced.

In short, that amendment is a technical one for the avoidance of doubt—it does not challenge the principle of the clause. It is a belt-and-braces suggestion because a lead force collaboration chief officer would not be within the ambit of this clause. It is probing and I am sure the Minister will want to reflect on whether I am right. I drafted it rather late as it sprang out at me as I was drinking my late-night cocoa reading the Bill, as one does. I am interested in the Minister’s comments as to whether that is covered. The same argument relates to amendment 293—it is the same point.

Amendment 291 relates to a different issue, the SEG. At the moment the drafting says:

“The manager of the aerodrome must nominate as a member of the group an individual who appears to the manager to represent the interests of the operators”.

It struck me reading this late at night to ask on what basis the manager can nominate an individual who “appears” to him to represent the interests of the operator. My amendment seeks to say “represents” the interests of the operator. Why is it “appears” to represent? The drafting is a bit loose and could lead to confusion. It should be perfectly clear who the operators wish to have as the individual nominated to represent them. I was completely mystified. I do not think the current drafting adds anything. Why can it not be cleaner with a straightforward “represents”? It is on that basis of a technical probing amendment that I will terminate my remarks.

Jim Fitzpatrick (Labour, Poplar and Canning Town)

I welcome you back to the Committee, Sir Nicholas. It is good to hear you in better voice than when we broke and it is nice to see that you have recovered.

I am also pleased to make my contribution on aviation security and offer brief respite to my ministerial colleagues from the scrutiny they have been receiving from all parts of the House.

In discussing amendments 292 and 293, I will try to explain the background as the hon. Member for Bury St. Edmunds has invited me to and then reinforce some points in response to issues he has raised and, I hope, reassure him as to the drafting of the Bill. These amendments seek to amend the provisions in such a way as to allow chief officers of forces other than the local airport police force to play a role in the delivery of airport security. Amendment 291 seeks to amend the provisions relating to the representation of airlines on security executive groups, as questioned by the hon. Gentleman.

I will turn first to amendments 292 and 293. The proposed revisions to new sections 24AB and 24AE in clause 60 seek to enable the chief officer of another police force who, working in collaboration with the local police force, has lead responsibility for the security of the airport to be represented on the risk assessment group and to be responsible for delivering security measures in the airport security plan. We understand that the intention behind the amendment is essentially to allow airports to put out a contract for dedicated policing services to competitive tender, attracting bids from forces around the country. Although we agree that the requirements should provide sufficient flexibility to allow local decisions to be made about who can most effectively deliver security measures, we do not consider that that should extend to allowing any police force to deliver those measures.

There is an important security point to consider here. Whether one is thinking of airport policing in terms of terrorism, serious and organised crime or simply low-level crime, local community intelligence is key to delivering effective policing. Creating a situation in which one force polices the local community, while another polices the airport runs the risk of disrupting the policing links between airport and community, and that is not something that we consider advisable. In any event, at a practical level there are real issues with the concept of competitive tendering for airport policing. The chief officer of police is responsible for policing within that force area, and any policing undertaken by representatives of another force could take place only with his or her consent. Whether such consent is issued would be a matter for the chief officer of police concerned and there is no guarantee that such consent would be provided.

Ruling out competitive tendering for airport policing does not mean, however, that we are placing airport operators in a position where they cannot negotiate effective and efficient ways of meeting their security obligations. The provisions in the Bill do not allow the police simply to impose the terms of airport security plans and police services agreements upon an unsuspecting and vulnerable operator—not that I have met such an animal. We expect stakeholders to think creatively about efficient and effective ways of delivering security. Dedicated policing is only one way to mitigate a threat. Employing an alternative approach may of course be entirely acceptable. Ultimately, if a matter came to dispute, the Secretary of State would issue a determination, based on the evidence presented, on the most effective way to mitigate the threat. At times, that may mean policing and at other times it may mean alternative measures.

The Government agree with the concern behind amendment 291, namely that subjectivity might result in airlines not being fairly represented on the security executive group. In circumstances in which there is disagreement about who is best placed to represent airlines on the SEG, the airport manager may use his general power of appointment in proposed new section 24AG(5) to appoint more than one airline representative to the group. The airport manager is required to act reasonably in his use of powers of appointment, so, where there is clearly an airline interest that is not being adequately represented at SEG level, the airport manager would be obliged to make any necessary appointment. In any event, in circumstances in which there was any doubt about whether an airline was being adequately represented, it would also be open to the Secretary of State to consider making his own nomination.

In light of that, there is little to be achieved from the airport manager being compelled to go through a formal exercise to establish who is best placed to be appointed first. That could generate a great deal of work for the manager, as well as an unnecessary liability burden on the aerodrome manager to prove that the airline appointee truly speaks for all airlines at the airport. If it is unclear, the aerodrome manager will simply appoint an additional airline representative. The aviation industry has, rightly, pressed strongly for the process not to create any unnecessary bureaucratic burden and we are keen that any such burden should be avoided wherever possible.

Government amendment 299 is a minor amendment that will ensure that provisions relating to the Secretary of State’s power to appoint observers to the SEG are consistent with the Secretary of State’s other powers of appointment contained within clause 60. The amendment will ensure that express provision is made to permit the Secretary of State to revoke his nomination of observers to the SEG.

On the points that the hon. Member for Bury St. Edmunds made, it takes 15 months to do an assessment, for the SEG to prepare the airport security plan and for the police services agreement to be put in place. At the quickest, it would be at least 15 months after the Bill is enacted before airports begin to put their arrangements in place, which gives them time to plan. On value for money and a breakdown of costs, we fully agree that there must be transparency, so we would expect clear invoices and clarity in the PSA before payment. The hon. Gentleman correctly draws attention to the fact that that does not exist currently.

Parts of the critical national infrastructure, primarily power stations and railway stations as well as the football stadiums that the hon. Gentleman mentions and nuclear power stations, pay for the police they require so that they can operate in a safe and secure environment. We therefore see no inconsistency in airports operating in the same way. Finally, at many airports, an airline operators committee already exists, and it is likely that that its principal representative will simply be asked to attend the SEG as well although, as I have outlined, if there is a requirement for additional airline representation the situation is open to a secondary appointment. I hope that in light of my reassurances the hon. Gentleman will not press amendments 292, 293 and 291.

David Ruffley (Conservative, Bury St Edmunds)

The Minister has given us some useful assurances, for which I am grateful, but I wish to press him further. He started by saying that the first amendment in this group was about competitive tendering. It might be, but you will notice, Sir Nicholas, being an eagle-eyed Chairman, that there is no reference to competitive tendering and if I had meant that to be the main thrust of the amendment, being a plain-speaking Englishman I would have used the words “competitive tendering”. The amendment does not imply that from where I sit, and it is quite a weak amendment, according to the following argument. We would not suggest that competitive tendering for Manchester airport, for example, be a national tender that would allow Kent and Essex, for instance, to come up with a great bid and start policing the airport. Instead, where there is a geographically local collaboration agreement to deliver level 2 services—it might be to do with serious organised crime, or drug or people trafficking and aviation security—that might be an up-and-running collaboration agreement including a force that has the airport in its geographical boundary. That has nothing to do with, and does not imply, a competitive tendering arrangement. It might just be that the services are delivered across three, four or five forces in the collaboration agreement and that the lead chief officer is from a nearby force but is operationally, and in terms of the governance structure of the collaboration agreement, the person who makes the judgment call about security at Manchester airport.

I urge the Minister to reflect on the fact that the only person who can serve on that group is the chief officer of the force in the area where the airport is located. He might want to reflect on that with his hon. Friend the Minister for Security, Counter-Terrorism, Crime and Policing. I would understand if he were concerned about competitive tendering, but this is a technical point about collaboration agreements operating locally and about who the chief officer should be for the purposes of the group set up under the clause.

Jim Fitzpatrick (Labour, Poplar and Canning Town)

I tried to respond to that point earlier. Manchester is not alone; Gatwick also straddles two constabularies and Heathrow straddles three. Our point is that somebody has to be responsible. The main constabulary should provide the appropriate responsible person, because the links with the local community and the greater area outside are an important part of policing the airport, not just from the point of view of the police services agreement but in terms of the contact between the airport and the community, the ability to determine what is appropriate through knowing what is outside as well as inside, and ultimately because the chief constable of the local constabulary has to sign off the agreement. It is therefore much more appropriate for them to be on the group. I would not for a second expect chief constables to fail to consult with constabularies with which they have collaborative relationships and agreements because of the locations of airports. I am sure that that happens at the moment, and I would be surprised if it did not happen once the measure is passed. The new procedure will be even more transparent than the existing one.

David Ruffley (Conservative, Bury St Edmunds)

The Minister has given a helpful reply. I am not entirely convinced on his last point about collaboration agreements. However, we need to make progress so I beg to ask leave to withdraw the amendment.

David Ruffley (Conservative, Bury St Edmunds)

I beg to move amendment 294, in clause 60, page 78, line 33, at end insert

‘provided that such agreement required of any individual shall not be unreasonably withheld’.

Nicholas Winterton (Conservative, Macclesfield)

With this it will be convenient to discuss amendment 295, in clause 60, page 78, line 35, at end insert

‘provided that such agreement required of any individual shall not be unreasonably withheld’.

David Ruffley (Conservative, Bury St Edmunds)

The amendment goes to the heart of the unanimity that will be required when a security plan is signed up to. Proposed new section 24AH(2) states:

“No provision may be included in an aerodrome security plan unless all the members of the group unanimously agree that it should be included.”

The purpose of amendments 294 and 295 is to probe the feasibility of seeking unanimity in what may be a group of as many as a dozen people. The wording of the amendments is the same, and they both suggest that rather than a provision requiring unanimity, the

“agreement required of any individual shall not be unreasonably withheld.”

There would therefore be a reasonability test when individuals make their decisions. An individual could object and thus deprive the rest of the group of the unanimity required for a plan to be signed off. They might decide, perversely, not to give their consent as a bargaining chip for another part of the negotiations. The unanimity concept in the clause is problematic. Will the Minister consider a requirement that consent should not be unreasonably withheld?

Paul Holmes (Liberal Democrat, Chesterfield)

The question of unanimity was raised when the Committee took evidence. Bob Jones, the chair of the Association of Police Authorities said of the current system:

“Our only slight reservation, probably contrary to the airport operators, is that the current system effectively requires unanimous agreement. That is a commendable desire, but it effectively results in a position where there is an individual veto. The appeal against that...can drag on for a considerable period of time, when there may be an important security risk that needs to be addressed in the short term rather than going through such a cumbersome process. I would hope that the Committee looks at the arrangements for resolving those issues where there is not unanimous agreement.”——[Official Report, Policing and Crime Public Bill Committee, 27 January 2009; c. 20, Q18.]

On page 78 of the Bill, between lines 31 to 35, there are two specific requests for unanimity: one states that there must be unanimous agreement on the aerodrome security plan; and the other states that there must be unanimous agreement on variations to it. This is an appropriate point to ask the Minister to tease out the thinking on those provisions. I know that later clauses mention independent tribunals and the power that the Secretary of State has to step in and act as King Solomon by adjudicating, and the Minister will probably refer to those provisions when he replies to the debate.

The amendments offer one way of dealing with that, but they set up their own problem: if one is to define what is, and is not, reasonable, one has to look at statute and dig oneself into all sorts of problems trying to define it. The unanimity issue is very desirable, as Bob Jones said, but it can also be a great hindrance if people are to take effective decisions, so it would be good to hear the Minister explain how the Government propose to get around that issue in this clause and those that follow it and offer a possible break on effective decision making.

Jim Fitzpatrick (Labour, Poplar and Canning Town)

Although we agree that parties to an aerodrome security plan should not behave unreasonably when providing consent to the inclusion or variation of a provision, I regret to say that our view is that the amendment would complicate rather than clarify matters. Stipulating that consent to the inclusion or variation of a term in an aerodrome security plan may not unreasonably be withheld prompts the question of who would be entitled to make the decision about whether such consent is being unreasonably withheld. The dispute provisions, as presently drafted, ensure that it is the Secretary of State who is entitled to make such decisions. That ensures real clarity, which we consider essential to ensuring that stakeholders sign up to and deliver the measures contained in the aerodrome security plan.

If unanimous agreement to a provision cannot be reached after proper discussion and a serious attempt at compromise, the matter may be referred as a dispute. Requiring that cases in which consent is being unreasonably withheld go to dispute does not mean that we are creating a long and drawn-out process for dealing with such matters. If it is blatantly obvious that a party is being unreasonable in its refusal to provide consent, the Secretary of State can indicate that early in the proceedings and may ultimately award costs associated with the dispute process against the party concerned. We believe that that will act as a real incentive on parties not to force matters to the dispute stage unreasonably. We believe that the provisions ensure real clarity on the issue of agreement to the terms to be included in an aerodrome security plan and provide sensible and practical mechanisms for dealing with parties who seek to behave unreasonably.

The hon. Member for Bury St. Edmunds said that that could offer police forces a veto on whether the plan is adequate, but it also offers the airport operators a veto. It is a double-edged sword, and that is what we believe gives protection and ensures that the process is equitable, transparent and agreeable and that it is known that costs can be awarded against someone who appears unreasonable. We will have the benchmark of other airports to show what is happening in airports of a similar size.

We believe that requiring unanimity actually places a burden on both the airport operator and the police to act reasonable because they know that the Secretary of State is waiting in the wings to act as arbitrator if a dispute arises. Where it was previously suggested that there be an independent panel to arbitrate on disputes, it was the stakeholders who said during consultation that they wanted ministerial oversight and the responsibility to rest with the Department for Transport. We accepted that suggestion and have now made the amendment to the Bill. We think that that strengthens the arrangements for workable and acceptable plans, and on that basis I ask the hon. Gentleman to withdraw the amendment.

David Ruffley (Conservative, Bury St Edmunds)

I am grateful to the Minister. The last part of his remarks is interesting and important. He describes a symmetry which, in a perfect world, would operate to ensure that one part is not unreasonably vetoed, because of the knowledge that, at some later date, they could be paid back in kind. On the basis of the Minister’s explanation, the unanimity might actually have a deterrent effect. If I could use an analogy from cold war nuclear strategy, it is mutually assured destruction; that is a flight of fancy that I am importing to our debate.

On a serious point, on the basis that the Minister is right, and I think that he probably he is, I am content to withdraw the amendment.

David Ruffley (Conservative, Bury St Edmunds)

I beg to move amendment 257, in clause 60, page 81, line 19, at end insert ‘, or

(c) a dispute about the costs of policing to be met by the aerodrome manager.’.

Nicholas Winterton (Conservative, Macclesfield)

With this it will be convenient to discuss the following:

Amendment 296, in clause 60, page 82, line 3, leave out ‘thinks’ and insert ‘reasonably believes’.

Amendment 297, in clause 60, page 82, line 15, at end insert

‘provided that the Secretary of State believes that the amount of such payment in respect of costs is reasonable and proportionate having regard to all the relevant circumstances.’.

Amendment 298, in clause 60, page 83, line 27, at end insert

‘provided that the Secretary of State believes that the amount of such payment in respect of costs is reasonable and proportionate having regard to all the relevant circumstances.’.

Government amendment 300.

Amendment 255, in clause 60, page 83, line 39, at end insert

‘and, for the avoidance of doubt, any such appeal shall not be restricted to the judicial review of the Secretary of State’s decision.’.

Government amendments 301 and 302.

David Ruffley (Conservative, Bury St Edmunds)

The amendment seeks to clarify the drafting. In subsection(2) of the proposed new section, “24AM Meaning of dispute about security planning”, there are two examples of areas relating to disputes about security planning. Subsection(2)(a) is

“a dispute about the contents of an aerodrome security plan”,

and subsection (2)(b) is

“a dispute about the implementation of an aerodrome security plan for the aerodrome.”.

However, what we do not have in subsection (2) is clarification of disputes relating to the costs of policing to be met by the aerodrome managers. Amendment 257 seeks to insert clarification, a new little (c), which makes it clear that disputes can relate, not just to the contents or the implementation of an aerodrome security plan, but to any dispute about the costs of policing to be met by the aerodrome manager. The reason that it does need to be spelt out is the real concern that we have already heard about from aerodrome operators—and even airlines, but mainly aerodrome operators—regarding the costs of policing.

The Minister might suggest that my amendment, which defines disputes and relates to costs, is actually caught by subsection 2(a)—in other words,

“a dispute about the contents of an aerodrome security plan”.

He might have a point, but I think that it is worth spelling out on the face of the Bill that disputes do, in fact, relate to the costs of policing to be borne by an aerodrome manager, because the Yorkshire Post, using rather colourful language, suggested that it was a terror tax.

The payments that this part of the Bill implies, are payments that are going to be extracted from private businesses, aerodrome operators, and in that sense it can be called a tax—it is a tax of a kind. Whenever imposts are levied on private individuals or corporate entities, we have to be careful to ensure that the extraction of money is open and transparent. I know that the Minister will want to assure us that the Bill gives more transparency than the current regime. We know that that comfort is needed because of the plethora of representations that members of the Committee—certainly on this side—have received about the lack of transparency and the apparent inability of some police forces to explain exactly what it is that they are charging for. The amendment flags up that important point.

I shall turn to amendment 296. The Bill gives the Secretary of State a power to intervene in a dispute even if there has been no formal referral of that dispute to the Secretary of State by one of the parties affected. For him to intervene, the Secretary of State must only think that there is a dispute—“thinks” is the word in the clause. That is a bit weak. The Secretary of State wakes up and “thinks” that there is a dispute. It is an unusual word to find in legislation and it leapt out at me, so I proffer the deletion of “thinks” and the insertion of “reasonably believes”. That makes clear that the Secretary of State cannot skittishly or coquettishly think that there is a dispute before using his or her powers to intervene.

Broadly the same point is being made in amendments 297 and 298. The relevant proposed new subsections may require a party to take steps to resolve a dispute and clearly include a requirement to make a payment. As the amendments say, we need to be clear

“that the Secretary of State believes that the amount of such payment in respect of costs is reasonable and proportionate having regard to all the relevant circumstances.”

Finally, amendment 255, in my name and that of my hon. Friend the Member for Hornchurch, is a probing amendment to ensure that it is clear that appealing a Secretary of State’s decision will not be restricted to judicial review. It may have been a fault on my part, but I was not clear where in the appeal mechanism a formal judicial review form of appeal would operate. I would be grateful if the Minister could clarify that for me, given my all too unforgivably hazy understanding of how that appeal mechanism would relate to judicial review. In that spirit of honest inquiry, I proffer these amendments and look forward to the Minister’s response.

Jim Fitzpatrick (Labour, Poplar and Canning Town)

Amendments 257 and 296 both relate to disputes. The first concerns the cost of policing and the other deals with the initiation of dispute proceedings. Amendment 255 considers the right of appeal. Amendments 297 and 298 both relate to how the Secretary of State apportions the costs of resolving a dispute concerning an airport security plan to those parties in dispute. Government Amendments 300 to 302 clarify, revise and ensure consistency of approach. I will look at each of those in turn.

Amendment 257 would allow disputes about the cost of policing to be raised in the context of the provisions relating to security planning. It is worth stating from the outset that the Bill already allows parties to raise disputes about the costs of policing. We recognise that it is absolutely essential for airport operators and the police to be able formally to dispute costs. This is why we have made provision for this in the Bill.

Proposed new section 29A of schedule 5 of the Bill allows airports, police forces and police authorities to dispute the terms of a police services agreement. The PSA is the document that will contain information about payments to be made by the airport to the police, and the services that the police will provide in exchange for these payments. But although we are clear that stakeholders must be able to dispute the cost of policing, we do not believe that they should be able to do this before they have agreed whether or not a dedicated police presence is actually required at the airport. This is what this amendment would require—what it is seeking—and, with respect, we do not think that it would make much sense.

The airport security provisions as drafted require stakeholders to adopt a logical process when planning and delivering security at airports. First, risks and threats to the airport are assessed and set out in a risk report. Secondly, stakeholders agree on what security measures are necessary to mitigate these threats, and these are set out in an airport security plan. Thirdly, if the airport security plan shows that a dedicated police presence is necessary to mitigate one or more of the threats to the airport, a police services agreement is drawn up.

Stakeholders are able to access dispute resolution proceedings at both stages two and three of this process. At stage two, when the airport security plan is being drawn up, the current provisions already allow stakeholders to dispute whether a dedicated police presence is actually needed to mitigate any given threat. This is provided for at subsection 24AM of clause 60. Once the airport security plan is agreed, it will be clear whether a dedicated police presence is actually required at the airport. If it is, stakeholders can proceed with stage three, which is the process of drawing up a police services agreement.

On occasion, it may not be possible to reach agreement as to policing costs. The provisions therefore allow stakeholders to dispute the costs of policing, by accessing the dispute resolution proceedings attached to the PSA provisions. These are contained at subsection 29A of schedule 5 of the Bill.

Structuring the dispute resolution proceedings in this way ensures that parties must agree whether a dedicated police presence is actually required at the airport before parties start becoming involved in discussions about costs. I hope the hon. Member for Bury St. Edmunds will be reassured that there are provisions in the Bill that will allow stakeholders to take disagreements about the costs of policing to dispute but at the appropriate stage.

The suggested wording change in amendment 296 to section 24AO implies that without the substitution of the word “thinks” with “reasonably believes”, that the Secretary of State might somehow act unreasonably in making a judgment as to whether a dispute might exist in relation to an airport security plan. With respect to colleagues opposite, this represents a misunderstanding about how the Secretary of State is required to carry out statutory responsibilities. The well established rules of natural justice already require the Secretary of State to act reasonably in using any statutory power. For this reason, the suggested amendment is unnecessary.

Amendments 297 and 298 both relate to how the Secretary of State apportions the costs of resolving a dispute concerning an airport security plan to those parties in dispute. The Government believe that it is only right that the taxpayer should not be responsible for meeting the costs of a dispute. Rather, costs associated with resolving the dispute, for example, the costs of providing experts to assist in its resolution, should be met by the parties in dispute. In apportioning costs to a party or parties, the Secretary of State will have regard to whether those involved have acted reasonably. In other words, costs will not necessarily be split equally between parties. In making any decision as to the costs that should be met by disputing parties, the Secretary of State will naturally judge whether his decision is reasonable and proportionate, having considered all of the relevant circumstances. This is the way in which any Secretary of State executes his legal responsibilities; it is unnecessary to prescribe this approach in legislation.

Amendment 300 makes express provision that the Secretary of State may not, as part of any determination on an ASP, require any other party to make payments to the chief officer of police for the relevant area. This is to ensure consistency in relation to the provisions concerning the content of ASPs. Amendment 255 to proposed section 24AR seeks to ensure that those delivering measures in an airport security plan are able to appeal any decision made by the Secretary of State in relation to a plan on the ground that it may not be a correct decision. If the right to appeal the Secretary of State’s decision were to be limited to judicial review, the decision could be challenged only on a limited basis. In the main, the factors that could be considered would be as follows: first, whether the Secretary of State was acting within his or her powers; secondly, whether fair procedure had been applied; and thirdly, whether the decision was reasonable in the sense of whether it amounted to an abuse of power. Indeed, we heard part of the definition of judicial review from the hon. Member for Oxford, West and Abingdon in relation to another part of the Bill.

The Government fully agree that the Secretary of State’s determination should be challengeable in the High Court on the grounds that, given the available evidence, a more appropriate decision about an airport security plan could have been made. That is why proposed subsection 24AR(1) is included. Without an express provision for appeal to the High Court, the right to challenge a decision by the Secretary of State would be restricted to judicial review. I am aware that some members of the Committee are far better acquainted with the law than I am; they will not need me to tell them that the amendment would result in a far more limited right of appeal than that included in the Bill.

As a matter of law, there is no doubt that the clause would not restrict appeals against the Secretary of State's decision to that of judicial review. Given that the present drafting already achieves the outcome intended by the amendment, the Government’s view is that the amendment is unnecessary.

Government amendment 301 simply revises the existing phrasing. Amendment 302 ensures that a consistent definition is applied wherever variants of dispute relating to airport security plans are referred to in clause 60. I invite the Committee not to press amendments 257, 296 to 298 and 255.

David Ruffley (Conservative, Bury St Edmunds)

I am grateful to the Minister. He will understand that by their very nature the amendments are probing. Indeed, as a former lawyer in administrative law, I am aware of the Wednesbury principles on unreasonableness and the rest of it, and that Ministers have to abide by the rules of natural justice as developed in administrative case law. Through the amendments, we were seeking to get the Minister to confirm how the dispute resolution procedure and the judicial review of decisions would operate. He gave a most eloquent exposition of how the clause will operate. I beg to ask leave to withdraw the amendment.

Schedule 5

David Ruffley (Conservative, Bury St Edmunds)

I beg to move amendment 258, in schedule 5, page 133, line 8, at end insert—

‘(8) In relation to disputes to which this section applies, the Secretary of State shall require that the police provider provides all parties to the dispute full and transparent information about the resource deployments and justifications for those deployments.

(9) In determining disputes under this section, the Secretary of State shall have regard to the principles of transparency and accountability in relation to the policing costs that are reasonable to be born by the aerodrome manager.

(10) Such principles will have regard, inter alia, to the following—

(a) whether an alternative police provider would have made different operational resource judgements based on the identified risks (and such comparison may include references to other airports with similar risk profiles);

(b) whether an alternative police provider would have provided those resources at a lower cost.’.

Clause 61 and the introduction of schedule 5 are important. Schedule 5 will omit sections 25, 25A and 25B of the Aviation Security Act 1982 and insert new text. It will change the current regime and remove the system of designation whereby only some aerodrome operators pay for policing at their aerodromes. All airport operators requiring a dedicated police presence at their aerodrome—not all do—will have to pay for services provided by the police. There must be agreement on whether police services are required at an aerodrome.

Dispute resolution, which has been alluded to in a different context, is at the heart of amendment 258, which I tabled with my hon. Friend the Member for Hornchurch. It would amend the schedule so that in relation to disputes,

“the Secretary of State shall require that the police provider provides all parties to the dispute full and transparent information about the resource deployments and justifications for those deployments.”

It also states:

“the Secretary of State shall have regard to the principles of transparency and accountability in relation to the policing costs that are reasonable to be born by the aerodrome manager.”

As was alluded to in earlier debates, there must also be regard to

“whether an alternative police provider would have made different operational resource judgements based on the identified risks”

and to

“whether an alternative police provider would have provided those resources at a lower cost.”

In short, the purpose of the amendment is to tease out once again the transparency of policing costs and the requirements that must be met in that regard.

The Minister should give a full reply to this debate because cost is an issue that most concerns those who have contacted Committee members. What has struck me is not that aerodrome managers and operators are going to die in the ditch over the concept that they have to cough up for policing. Some think that it is totally iniquitous, but many believe that the principle in the Bill is sound. However, they wish to ensure that any payments they must make are levied in a transparent way. I gave examples earlier of operators who have suggested that under the current regime some police forces will merely say, “This is a security risk and this is the level of policing. Now pay your money.” The purpose of the amendment is to tease out how we might improve the current regime, which appears to be inadequate for many operators.

Jim Fitzpatrick (Labour, Poplar and Canning Town)

The amendment is clearly designed to ensure that the Secretary of State’s determination in resolving disputes about policing at aerodromes is transparent, fair and proportionate and that it provides value for money. Those are the very factors that were considered in drafting the schedule so I understand why the hon. Gentleman wants to ensure that it has that effect. As I mentioned, stakeholders in industry and the police have welcomed the decision to change the final arbiter in disputes from a panel of independent experts to the Secretary of State for Transport precisely because they believe that it will provide sufficient accountability for decisions and will be fair and proportionate.

The amendment seeks to achieve the desired outcome by placing specific requirements on the Secretary of State, which we believe add no value to provisions that already provide broad powers to ensure that a fair and thorough determination is made.

Proposed new section 29C (5) is drafted in broad terms to allow the Secretary of State to gather information from relevant parties, whoever those may be. That extends to the airport operator and the police as well as other relevant organisations. The measure was included to ensure that the relevant police force supplies information on resourcing, as described in the amendment under proposed section 29C (8). By using powers under proposed new section 29C (5), the Secretary of State will look for clear evidence that police resources are justified in making any determination. Prescribing the specific types of information that the Secretary of State should consider is unnecessary as those powers are already in the Bill.

The amendment seeks to ensure that the police do not impose an unreasonable level of their resources at the airport, which the aerodrome manager will be required to pay for. It is also about ensuring that airports receive value for money, and we understand that. The Government are conscious of those issues, which is partly why we are instituting an end-to-end process for security planning that builds in collective agreement for the necessary security measures based on agreement between all those with an interest in airport security.

The Government believe that subsections (9) and (10) to proposed new section 29C should not be included in the Bill. We all agree on the principles of transparency and accountability and they run through the entirety of the current provisions. The act of producing a risk report and an airport security plan to support security decisions—both of which will be available to all relevant parties—is wholly transparent and provides a clear set of accountabilities. The amendment would provide no added value as such measures already exist.

Subsection (10)(a) to proposed new section 29C would create a hypothetical situation whereby the Secretary of State would need to consider whether another police force would have made different operational resource decisions. It would not be possible do that adequately without asking another police force to make such a judgment. That would be impractical since the other force would not have been privy to the discussions and arrangements that led to the final decision. It would have to go back to the start, take evidence and weigh it up. Therefore, the process would be time-consuming and could leave the Secretary of State in a dilemma as to which force’s view should be given greater credence.

If, however, the Secretary of State feels that such advice would be helpful, that can be pursued under the existing provisions as drafted in the schedule. It would not be appropriate for the legislation to prescribe that in every instance when it is not relevant to the dispute. If accepted, the amendment would require the Secretary of State to consider whether another police force would have provided resources at a lower rate. That implies that policing of airports is a competitive, commercial venture—that was the discussion that we had at the beginning of the debate on the amendments tabled by the hon. Member for Bury St. Edmunds.

Resourcing costs are calculated on numerous factors such as shift patterns, management structures and the like, which may vary from force to force. The costs must reflect the circumstances of each force and the Secretary of State must consider those factors when determining if something is proportionate, rather than considering whether another force could have provided the resources more cheaply.

The schedule is designed to ensure that the procedures followed by the Secretary of State in determining a dispute are impartial and transparent, and that the determination is fair and proportionate. Comprehensive guidance material will clarify the more detailed issues raised by the amendment. I therefore invite the hon. Gentleman to withdraw his amendment.

David Ruffley (Conservative, Bury St Edmunds)

I beg to ask leave to withdraw the amendment.

Jim Fitzpatrick (Labour, Poplar and Canning Town)

I beg to move amendment 303, in schedule 5, page 134, line 35, at end insert—

‘10A Omit section 30 (supplementary orders).’.

Nicholas Winterton (Conservative, Macclesfield)

With this it will be convenient to discuss Government amendments 304 to 306.

Jim Fitzpatrick (Labour, Poplar and Canning Town)

Amendments 303, 305 and 306 provide for section 30 to be repealed with saving provisions to ensure that any orders made under the section are preserved. In practice, section 30 has principally been used where airports have been designated to effect the transfer of private forces to local Home Office constabularies and to make associated arrangements. The relevant orders date back to the late 1970s. As the aviation security provisions in the Policing and Crime Bill will remove the concept of designation, there is no longer any need for the Secretary of State to retain such a power.

Amendment 304 ensures that a standard definition is employed in schedule 5 wherever the phrase

“dispute about the policing of a relevant aerodrome”

occurs in the provisions. I beg to move the amendments.

Clause 62

Alan Campbell (Labour, Tynemouth)

I beg to move amendment 308, in clause 62, page 86, line 36, leave out ‘31,’.

Nicholas Winterton (Conservative, Macclesfield)

With this it will be convenient to discuss the following: Government amendments 309 and 310.

Government new clause 27—Notification of proposal to include person in barred list: England and Wales.

Alan Campbell (Labour, Tynemouth)

Thank you, Sir Nicholas. Welcome back to you, too.

This group of amendments is designed to improve the working of the planned new vetting and barring scheme provided for under the Safeguarding Vulnerable Groups Act 2006 and, as indicated by amendment 307, the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007.

It aims to improve the safeguarding of children and vulnerable adults, and builds on the outcome of a public consultation with stakeholders on the details of the scheme's operation. We propose four main changes.

In amendments 335 and 336 we propose to remove the redundant status of

“subject to monitoring and undergoing assessment”

from the online status check that will be available to employers who employ people in regulated activity with children or vulnerable adults. Undergoing assessment is too sensitive a status to appear in a publicly available IT system. In addition, when people first apply to be subject to monitoring by the scheme, they will inevitably be undergoing assessment for a while, so giving them that status will be meaningless.

Instead, guidance to employers will highlight that though new applications by members of the work force to be made subject to monitoring will be processed quickly, information may still be coming in to the CRB about those people until the associated enhanced disclosure is ready to issue a few weeks after the application. Until then, employers should apply appropriate safeguards in relation to all new applicants as neither they nor the ISA will yet have the full picture. Employers will have a true guide to a person's status through a CRB enhanced disclosure, which will say clearly if the person is under consideration for barring by the ISA.

New clauses 27 and 28 strengthen the notification of employers whose employees may pose a risk of harm to the vulnerable groups. The amendment provides that when the ISA has reached the advanced stage in its consideration and proposes to bar someone from working with children or vulnerable adults subject to their representations, it must notify any interested party who has registered for notification of any change in the person's status in the scheme—normally an employer in regulated activity with the vulnerable groups.

Also, if the ISA is satisfied that any other party has a legitimate interest in the person, it may notify that party that it proposes to bar the person. Such a party might be an employer of a person in regulated activity who has not yet had the opportunity to register his or her interest, because of the scheme's phasing-in period.

A person whom the ISA proposes to bar has eight weeks to make representation, and there might be a further period of time before the ISA is able to make its final decision. We do not believe that it is sustainable for the ISA to be aware of a risk posed by that person during that period but that the employer not be aware. It will be for employers to determine what action it is reasonable and appropriate for them to take in those circumstances, and guidance to employers will advise on what they might do if they receive such a notification.

For example, they might suspend the person or move him to work other than with the vulnerable groups. I stress again that the ISA is at an advanced stage in its process when it makes the notification. It has made a finding of fact and a judgment that it would be appropriate to bar, and has invited the individual to make representation about its decisions.

New clauses 29 and 30 give the ISA an explicit power to provide information to the police about people who come to its notice where that is necessary for the purposes of crime prevention, detection or investigation. Normally, the ISA will receive information from the police. However, there may be exceptional circumstances where the ISA receives information that is unavailable to a particular police force about a person, but the ISA knows that that force has an interest in them and can form a view that they pose a risk of harm. The ISA should then have the power to inform the police in order to prevent crime. The police might then notify any known employer, local children’s services or adult social services, who would be able to take appropriate action if necessary.

New clauses 31 and 32 change the way in which the scheme will process automatic barring. Certain criminal offences, which are set out in secondary legislation, will cause the offender to be barred automatically. Both the 2006 Act and the 2007 order envisaged the CRB finding such offences in the police national computer, and the ISA then simply being required to bar the offender. Practice has shown that life is not so simple, because, in some cases, the circumstances in which the offence was committed need to be checked. For example, in some cases the age of the offender, and, occasionally, the victim, need to be clarified before it can be confirmed whether the prescribed criteria have been met, so an automatic bar should be applied.

ISA case officers—rather than the CRB, whose function is data processing—will establish the details of the circumstances in which an offence was committed. Indeed, the ISA has already started that work under transitional arrangements that were approved by Parliament last November. We need to reflect such practical experience in permanent legislative provisions.

David Ruffley (Conservative, Bury St Edmunds)

I briefly want to confirm that the Opposition attaches as much importance as the Government to the safeguarding of vulnerable groups. I do not therefore have an issue of principle, but I have a query that I hope is not trivial.

Will the Minister explain why it was absolutely necessary to rename the Independent Barring Board? I ask that for two reasons. First, that original title has an element of stigma and sanction, which is a good thing—“barring” is a good word. Secondly, the Opposition are often struck by the remorseless amount of change that we see from the Government. I forget whether it was Bolingbroke or Halifax who said:

“When it is not necessary to change, it is necessary not to change.”

Simon Burns (Conservative, West Chelmsford)

It was Falkland.

David Ruffley (Conservative, Bury St Edmunds)

My hon. Friend, who is a more distinguished historian than I will ever be, corrects me from a sedentary position. It was a grand old Tory who said it in any event.

It is a serious point that remorseless relabelling, rebranding and rebadging—to use terrible PR-speak—is something that Government should avoid as frequently as possible. Will the Minister, as a careful and prudent keeper of the public purse in relation to the Home Office budget, tell us the cost of the renaming in terms of changing letterheads, business cards and contact details? I may well have missed something, but the change does not seem necessary. It is a semantic change that will only cost the taxpayer, and confuse people who have been cheerfully rubbing along and carrying out their lives by looking at something called a barring body—I do not see why that name has to change, but perhaps the Minister can enlighten us.

Alan Campbell (Labour, Tynemouth)

I am genuinely and sincerely grateful to the hon. Gentleman for the Opposition’s support for what we trying to do, and his reassurance that they treat the issue as importantly as we do. He said that “barring” was a good word in his view, and indeed it has some use as a word that sends out a message. But in reality, in the widespread consultation, the stakeholders of the vetting and barring scheme indicated that they did not particularly like the word “barring”, and preferred the word “safeguarding, because that gives greater prominence to the safeguarding agenda. It grew from them, as opposed to the Government seeking to change something for the sake of it, and I believe that it sends out the right message.

The hon. Gentleman asked about costs, particularly of letterheads. I am informed that the IBB never had letterheads, so there would be no cost, but I will check that, and if I find any costs, I will come back to him.

Nicholas Winterton (Conservative, Macclesfield)

We come to a point where I am obliged to ask whether I have the Committee’s agreement to put together the questions on whether clauses 63 to 76, to which no amendments have been tabled, should stand part of the Bill. Both the Opposition and Government Whips have said yes.

David Ruffley (Conservative, Bury St Edmunds)

On a point of order, Sir Nicholas. I was not aware that the clauses would be dealt with so rapidly. I seek your guidance, because I should like to speak on clause 63.

Nicholas Winterton (Conservative, Macclesfield)

This has been a very reasonable Committee, and there has been excellent co-operation across it. Is that the only clause that the hon. Gentleman wishes to comment on? I seek guidance so that I know how to proceed.

David Ruffley (Conservative, Bury St Edmunds)

Further to my point of order, Sir Nicholas. I wish to comment on only clauses 63 and 73 in this group.

Clause 63

David Ruffley (Conservative, Bury St Edmunds)

I am most grateful, Sir Nicholas, for your excellent guidance and forbearance. I am particularly pleased that you allowed me some latitude on clause 63. This important clause relates to checks on those who are or seek to be school governors, and it throws up a serious question. Subsection 13(3) of the Safeguarding Vulnerable Groups Act 2006 ensures that an officer who runs those checks does not commit a criminal offence if they do not make a check on a governor who was appointed before section 13 became law. That is a clear exception. Subsection 13(4) of that Act allows the Secretary of State by order to set a date when that exception will come to an end—a sunset provision.

It is important to understand how the time scale will operate, for the simple reason that that time-limited exception allows for a check not to be run against a governor who happens to be a paedophile. How long does the Minister expect that exception under the sunset provision to exist? I do not for one second suggest that Ministers have not got their eye on that; it is clear from the explanatory notes that they take the matter seriously. I seek to make no party political or other point; this is an honest inquiry as to how long the phasing out of the exception will take. There is a difference between the exception existing for three months and it existing for a year. None of us on the Committee, and certainly not the Ministers and officials, would want to see an exception, which is there for understandable reasons, lingering on. The longer the exception is there, the less focusing there will be of the minds of appropriate officers, because the exception removes the criminal liability of those officers who fail recklessly or negligently to do the required checks of school governors.

We want to ensure that the exception for those individuals who were governors before the 2006 Act came into force does not continue for too long. We want the norm to be appropriate officers making checks on all school governors, whether they were governors before or after the passage of that Act. It is on that question of genuine, honest, non-partisan inquiry that I, and many families and schools, would like the Minister’s guidance.

Sally Keeble (Labour, Northampton North)

Further to that point, will my hon. Friend the Under-Secretary say whether a similar provision will apply to local authority members who visit schools? That issue arose some time ago in my constituency. As selected representatives we go in and out of all kinds of institutions without any checks. I have only once been asked for a police check to visit a children’s establishment, and that was when I was travelling abroad with a voluntary organisation. Elected representatives are not always immune from difficulties in this area either. Could my hon. Friend respond to that point?

Alan Campbell (Labour, Tynemouth)

I am grateful to both the hon. Member for Bury St. Edmunds and my hon. Friend the Member for Northampton, North not simply for raising the issue, but for the way in which they did so. We have a shared concern. These are important questions. It is important to get the right system in place to identify and exclude people who are at risk. We also need to give confidence to people working in schools and parents that the system is robust. That also helps to keep this as a high priority.

The hon. Gentleman raised the issue of sunsetting. We have said that we will phase in the requirements to check over a period of time, but I can assure him that this will be done on a risk basis. So the person he identifies who has never been checked and yet could be a paedophile would be placed in a very early stage in that period. While in theory there may be a short period, I can assure him that it will be the shortest period possible.

My hon. Friend raised the issue of local authority members visiting schools. To some extent it rather depends on the visit whether the local authority member does any work for the school. If they do, they will be checked. Again, we will be phasing in over a period of time. I will certainly take away the points that she raises. There are a number of people in elected positions who will fairly regularly go into schools in their area. Indeed, it is important that we can give her and the Committee the reassurance that she seeks.

Clause 73

David Ruffley (Conservative, Bury St Edmunds)

The clause refers to the very important question of the powers that the state has in relation to persons entering or leaving the UK. It goes to the very heart of the broader issue of border control. It will amend the Customs and Excise Management Act 1979 by inserting a new section, which will enable an officer of Revenue and Customs to require a person entering or leaving the UK to produce their passport or travel documents and answer questions about their journey.

These are sensible powers. They are also desirable because porous borders only lend succour and aid to those who wish to commit crime. The UK’s border is too porous in our view. I know that Ministers in the Home Office are not happy either. The Minister for Borders and Immigration said:

“we have, compared to other rich countries, been liberal in our border controls”.

I infer from that that he thinks the Government could do better at border control. If that inference is correct, Ministers should adopt the Opposition’s suggestion and have a dedicated border police force to toughen up our borders.

Sixty per cent. of illegal immigrants resident in the United Kingdom arrived here illegally, the majority in the back of a lorry, extraordinarily enough. People will not need reminding that the economic and social costs of people trafficking to the UK amounted to £1 billion in 2003. Some would put the estimates much higher than that, particularly in non-pecuniary terms. We know that weapons are smuggled across UK borders and we must do better at clamping down on that.

The powers in the clause will be important in improving our performance in stamping out illegal weapon transmission into this country, people trafficking and people wishing to enter the country illegally. The powers will clamp down on those problems by sensible questions being asked of individuals along with the requirement for them to produce their passport and other documents when asked to by an official of Her Majesty’s Revenue and Customs.

The clause raises a bigger question. The Government have not been slouches on this issue. They have decided to enter the electronic age in announcing the e-Borders programme. I will not detain the Committee for too long on this point. The e-Borders system is under development in this country. It will ensure that the state can access a comprehensive record of everyone wanting to come into or leave this country and of everyone who crosses our borders. That will strengthen the security of those who live in and visit our country, make it easier for those who are travelling and trading legitimately, and maintain tight control of our border.

Under the e-Borders programme information will be collected from the carrier, not the passenger. The carrier will be legally required to collect information and provide it to the UK border authorities as part of a check-in process.

The clause asks sensibly for more information from individuals who wish to cross our borders. I will try not to stray out of order. The e-Borders programme must be integral to and complementary to the powers in the clause that will improve the information and details individuals must furnish when they wish to cross our borders. In that context, will the Minister say at what stage Her Majesty’s Government are in the e-Borders programme?

Information supplied to me and my hon. Friend the Member for Hornchurch suggests that airlines, which will be the prime furnishers under the e-Borders programme, are concerned about the costly changes they will have to make to their reservation and departure control systems to comply with the programme. They are also concerned about a lack of information from the Government to prepare them for the changes. We are advised that the e-Borders programme should have gone live on 2 October 2008, but carriers were not told until 24 October that the deadline had been revised. I have been told that the Home Office puts an unrealistic time scale on carriers making the relevant changes. Some airlines will have to make significant changes to meet the terms of the scheme as set out by the Government.

Running the e-Borders programme is a £650 million contract, which was awarded in November 2007 to Trusted Borders, a consortium led by Raytheon Systems. A delay has occurred, but I have been advised that the programme is now scheduled to start being rolled out at the end of February. That is pertinent when we are discussing the clause, because the type of information required from passengers who are, after all, crossing our borders will include personal information such as their date and place of birth, their address and the type of information that would allow them to be checked against the watch list of individuals who might pose a threat to the British state.

My information is that Trusted Borders, when asked, has given no public information on progress. One might say that that is commercial in confidence information and that it cannot really talk about it, but in these days of an ever present threat of terrorism, we are talking about a Government programme that has been announced and will allow for better alerts at relevant border points where individuals who might pose a threat to this country are identified, but we do not have a clear indication of when the e-Borders programme will be up and running. If the Minister, who has made some sensible proposals on the information individuals will have to provide, wants our support for the clause, he should also tell us where we are on the e-Borders programme.

Nicholas Winterton (Conservative, Macclesfield)

I have been advised by the usual channels—I am merely a servant of the Committee—that they hope to make certain progress by the time of the Division on the Floor of the House, which I understand will take place at about 20 minutes past seven. I say that merely to concentrate the minds of Committee members.

Vernon Coaker (Labour, Gedling)

Thank you, Sir Nicholas. Before I address the specifics of the clause, I will give the hon. Member for Bury St. Edmunds some of the information on the e-Borders programme that he requested and that he and other Committee members might find useful. So far, the £1.2 billion e-Borders system has screened more than 78 million passengers travelling to and from the UK, leading to more than 2,700 arrests, including those of murderers, drug dealers and sex offenders. Other interventions have resulted in the seizure of improperly used British passports, the confiscation of drugs and the refusal of leave to enter to a substantial number of foreign nationals. E-Borders will screen against watch lists 60 per cent. of all passenger and crew movements in and out of the UK by December 2009, rising to 95 per cent. by December 2010 and 100 per cent. by March 2014. That answers the hon. Gentleman’s specific question about the progress of the e-Borders programme, and I hope that that is of help to him and the Committee.

I thank the hon. Gentleman for his support for what I think is a reasonable change to the powers that customs officers have. Clause 73 supplements the existing customs powers available to Her Majesty’s Revenue and Customs and the UK Border Agency in relation to people arriving in the UK, which, broadly speaking, are currently limited to questioning travellers about their goods and baggage. Customs checks are no longer random, but risk-based and intelligence-led. Customs officers and UKBA officers need first to establish whether the person in front of them is the person they are looking for or, if they are at a busy airport, whether they have arrived on a high-risk flight that they are targeting. For that purpose, the clause gives customs officers powers to require the people to produce identity and travel documents and ask questions of passengers about their journey. That will enable officers to decide whether to proceed with further checks, such as examination of baggage.

I think that that important alignment of powers between Her Majesty’s Revenue and Customs officers and those of the UK Border Agency will make a significant difference, and I thank the hon. Gentleman for his support. This is one of those measures that, on reading it, I asked, “Can’t they do this already?” It is a sensible measure, and I am glad that the hon. Gentleman supports it.

Clause 77

Vernon Coaker (Labour, Gedling)

I beg to move amendment 311, in clause 77, page 96, line 27, after ‘prohibited’ insert ‘, subject to section 141ZC’.

Nicholas Winterton (Conservative, Macclesfield)

With this it will be convenient to discuss Government amendments 312 to 316, 328 to 333 and 337 to 342.

Vernon Coaker (Labour, Gedling)

The hon. Member for Hornchurch and I deserve to exchange wry smiles, I think. We have been trying to sort this problem out between ourselves for quite a while. The provision arises from samurai swords as much as from anything else, but we are getting there.

Clause 77, with the amendments made in part 10 of schedule 6, separates out the importation consequences of specifying a weapon in an order under section 141 of the Criminal Justice Act 1988 from the consequences that flow under section 141(1) on sale, hire and so on. In doing so, the clause provides clarity on the powers of the Scottish and UK Governments to ban offensive weapons and facilitates the development of a common border control north and south of the border to support our drive to tackle knife crime.

Amendments 311 and 314 set out exceptions to the prohibition on importation of offensive weapons, rather than defences to specific offences, as is currently the case. That means that the exceptions can be relied on in proceedings for any criminal offence, as well as in forfeiture proceedings under the Customs and Excise Management Act 1979.

Amendments 315 and 316 amend the transitional provision in clause 77. The transitional provision applies where the date of importation cannot be established beyond reasonable doubt and where that would prevent a person from being convicted. The amendments widen the transitional provision to apply to any offence under the Customs and Excise Management Act rather than to specified importation offences.

Amendments 328 to 333 and 337 to 342 amend Scottish legislation on offensive weapon bans and ensure that defences for the purposes of film, TV and theatre can apply to the offences of sale, manufacture and so on of offensive weapons in Scotland. Such defences are already available in England and Wales. I hope—the hon. Member for Hornchurch will understand this—that this is the last time that I will have to move an amendment on the matter before this Committee or indeed the House.

James Brokenshire (Conservative, Hornchurch)

I am grateful to the Minister for introducing the proposals. I think that this is either the third or the fourth time that we have had the opportunity to discuss the subject in detail. We are obviously building on the 10-minute Bill in which I initially kicked it off. It seems quite a long time ago.

I welcome the fact that the measure will be UK-wide—I know from my previous discussions with the Minister that it did not apply north of the border before—and that a number of the detailed points raised in statutory instrument Committees in relation to exemptions have been modified slightly. We will certainly keep the matter under review, as I am sure he will. Although he may believe that this is the last time that he will have cause to review the provisions, I cannot guarantee it.

Clause 86

James Brokenshire (Conservative, Hornchurch)

I beg to move amendment 343, in clause 86, page 102, line 13, leave out subsections (7) and (8).

Nicholas Winterton (Conservative, Macclesfield)

With this it will be convenient to discuss Government amendment 317.

James Brokenshire (Conservative, Hornchurch)

Given your indication, Sir Nicholas, in terms of time and the impending division, I will be brief. However, in the short time I have been in this House it has been interesting to note how these minor inconsequential amendments provisions have grown, seeming to cede more authority to the Government to deal in secondary legislation with matters previously dealt with in primary legislation. With your leave, Sir Nicholas, I will combine my stand part comments to save time. Look at subsection (3) where

“the Secretary of State may by order make such supplementary...provision...for the general purposes, or any particular purpose, of this Act or in consequence of any provision made by or under this Act”.

This is extremely wide in its ambit and drafting and seems to give a broad swathe of additional powers and authority to the Government to make subsequent orders that may be important and significant by way of order-making power, rather than dealing with it by way of primary legislation, allowing a full and proper debate on the merits or otherwise of those provisions.

The amendment in my name and that of my hon. Friend the Member for Bury St. Edmunds seeks to delete subsections (7) and (8). Those subsections provide that the negative resolution mechanism will apply in circumstances where the repeal, amendment or change does not apply to a public general Act. There may well be other statutory instruments approved by affirmative resolution that may then be captured and changed by virtue of these provisions, such that they are being amended, and on the basis of this language they would suddenly become subject to the negative resolution process. It is this mission creep in respect of these clauses that seems to extend the additional powers, moving not simply into statutory instrument territory but also into the negative resolution approach. That is what I object to in the way these matters have been progressing, even over the past few years. I would urge the Minister to consider this provision more carefully in the way it has been drafted and the powers that seem to be ceded because on its current terms I do not think it is acceptable.

Alan Campbell (Labour, Tynemouth)

I am grateful to the hon. Gentleman for seeking to clarify this measure because it has prompted a Government amendment to seek to do precisely that.

If I may speak first to Government amendment 317 which is a minor technical amendment intended to clarify clause 86 (7). Subsection (7) states that the affirmative resolution procedure is not required for an order made under this clause that does not amend or repeal a provision of a public general Act. The amendment is intended to make clear that an order does not amend or repeal a provision of a public general Act as described in subsection (7) if the provisions being amended or repealed were inserted by a local Act or any other Act that is not a public general Act. Indeed, such an order would be subject to the negative resolution procedure. The hon. Gentleman’s amendment 343, on the other hand, seeks to make all orders made under clause 86 subject to the affirmative resolution procedure. We believe that the affirmative resolution procedure is necessary for those orders that amend or repeal public general Acts, a point made by the hon. Gentleman, but it is not necessary for all orders made under clause 86 to be subject to that procedure. For example, the order-making power could in theory be used to replace references in secondary legislation to the Independent Barring Board with references to the Independent Safeguarding Authority should clause 62 come into force. We consider that such amendments would not warrant the use of the affirmative resolution procedure. Indeed, the clause is in line with provisions in other Acts of Parliament. For example, similar provisions were made in section 148 of the Criminal Justice and Immigration Act 2008 and section 75 of the Charities Act 2006.

I hope that the hon. Gentleman will withdraw amendment 343. I invite the Committee to support amendment 317.

James Brokenshire (Conservative, Hornchurch)

An issue of principle is involved here, and although I heard what the Minister had to say I seek to divide the Committee on amendment 343.

Schedule 6

Schedule 7