Mr Nick Hawkins (Surrey Heath, Conservative)

I beg to move amendment No. 100, in

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

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

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

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

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

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

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

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

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

Mr Alan Hurst (Braintree, Labour)

It is in the next group.

Mr Nick Hawkins (Surrey Heath, Conservative)

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 I am working from a slightly out of date selection list.

Mr Stephen Hesford (Wirral West, Labour)

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

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

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

Mr Nick Hawkins (Surrey Heath, Conservative)

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

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

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

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

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

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

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

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

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

Mr Nick Hawkins (Surrey Heath, Conservative)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr David Heath (Somerton & Frome, Liberal Democrat)

I beg to move amendment No. 143, in

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

Mr Alan Hurst (Braintree, Labour)

With this it will be convenient to discuss the following:

Amendment No. 101, in

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

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

Amendment No. 102, in

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

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

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

Amendment No. 64, in

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

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

Amendment No. 65, in

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

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

Mr David Heath (Somerton & Frome, Liberal Democrat)

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

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

Mr Nick Hawkins (Surrey Heath, Conservative)

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

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

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

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

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

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

will be used

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

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

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

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

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

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

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

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

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

Mr David Heath (Somerton & Frome, Liberal Democrat)

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

Amendment, by leave, withdrawn.

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

Mr David Heath (Somerton & Frome, Liberal Democrat)

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

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

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

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

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

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

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

Mr David Heath (Somerton & Frome, Liberal Democrat)

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

Clause 46 ordered to stand part of the Bill.