New Clause 6 — Interception of communications

Orders of the Day — Serious Organised Crime and Police Bill — [1st Allotted Day] – in the House of Commons at 6:19 pm on 7th February 2005.

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'Sections 17 and 18 of the Regulation of Investigatory Powers Act 2000 (c. 23) (exclusion of matters from legal proceedings) shall cease to have effect.'.—[Mr. Andrew Mitchell.]

Brought up, and read the First time.

Photo of Andrew Mitchell Andrew Mitchell Shadow Minister (Home Affairs)

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

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

With this it will be convenient to discuss amendment No. 10, in page 219, line 10 [Schedule 17], at end insert—

'Regulation of Investigatory Powers Act 2000 (c. 23) Sections 17 and 18'.

Photo of Andrew Mitchell Andrew Mitchell Shadow Minister (Home Affairs)

The purpose of the new clause, which is in my name, those of my hon. Friends, and that of Mr. Heath, who leads for the Liberal party on this Bill, is to abolish the restriction on the use of intercept evidence in the criminal courts. My right hon. and learned Friend the Leader of the Opposition announced last week that we would move the new clause today. Of course, it has a wider application than just this Bill, and might help to bring back within the criminal justice system those currently outside it, which would be greatly welcomed.

We argue that the present restriction is anachronistic and illogical, and its abolition has been recommended repeatedly to the Government in recent years. Our amendment does not alter the circumstances in which an interception warrant can be issued or renewed under the Regulation of Investigatory Powers Act 2000. Britain finds itself isolated, since with the exception of Ireland intercept evidence may be used to support criminal prosecutions in every other major country. The Government's argument that the use of intercept evidence could undermine the public interest by revealing to terrorists and organised criminals vital operational details deployed by the police and intelligence service, is, I submit, complete nonsense, since a well established and refined system already operates in the criminal courts to ensure the withholding of operational details in circumstances in which disclosure would be detrimental to the public interest.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

That is a powerful argument against the Government's position, but there is a yet more powerful argument: it is for the Crown Prosecution Service, taking the advice of the Attorney-General where necessary, to decide whether to proceed with the prosecution. If the class of evidence is such as to be prejudicial in the matter outlined, it would not be adduced.

Photo of Andrew Mitchell Andrew Mitchell Shadow Minister (Home Affairs)

My right hon. and learned Friend is absolutely right. I will come to that point in due course.

At this early stage in the debate, it is important to point out that the new clause does not require the prosecution to use intercept evidence during a criminal trial. Instead, the new clause is permissive, in the sense that it would afford the prosecution the opportunity to adduce intercept evidence in a case in which the prosecution lawyers believe that it is appropriate to do so. At present, apart from in a small number of eclectic and in some cases random exceptions, that course of action is not open to them.

Photo of Vera Baird Vera Baird Labour, Redcar

The hon. Gentleman says that the clause is permissive, but in truth it would not be, because the defence would be entitled, in our adversarial system, to raise the query, "Was there any phone tapping?" It therefore becomes incumbent on the prosecution, whenever it has occurred, once it is lawful, to disclose that it has occurred.

Photo of Andrew Mitchell Andrew Mitchell Shadow Minister (Home Affairs)

Yes, I will come to that point , too.

Shutting out telephone tapping evidence is contrary, as I understand it, to the basic principles of evidence—if it is relevant, it is admissible. Therefore its inadmissibility, in my view, is a carbuncle on the face of the law of evidence. The consequences of the Government's unbending refusal to contemplate the use of intercept evidence in a criminal court led them to propose two weeks ago a course of action which many argue is inimical to the rule of law in this country. The merits of the Government's proposals to introduce detention through a control order—less euphemistically known as house arrest—will be debated at another time in the near future.

Photo of Dr Brian Mawhinney Dr Brian Mawhinney Conservative, North West Cambridgeshire

Before my hon. Friend leaves his first point, may I declare a history as one of the five Members of the House who served on the Privy Councillor committee that reviewed the terrorism legislation? Two of my distinguished colleagues from both sides of the House are also currently present. We were led to believe without equivocation that this was an anachronism— we cannot, for reasons that the House will understand, reveal what was said to us. We were unanimous in our view that if the Americans can use intercept evidence from this country and we can use French intercept evidence in this country, and if we now know that the Metropolitan Police Commissioner is in favour of using intercept evidence, the argument has moved on. As gently as possible, I hope that he will help the Government to understand that, for the sake of the security of the nation, this new clause ought to be adopted.

Photo of Andrew Mitchell Andrew Mitchell Shadow Minister (Home Affairs)

I am most grateful to my right hon. Friend. He did indeed serve on that committee, and I will refer to some of the conclusions that it reached.

For the purposes of this debate, however, the argument that the proposals represent a disproportionate derogation from the liberty of the individual enshrined in article 5 of the European convention on human rights is wrong. This derogation would not be necessary were the Government to yield to the overwhelming merits of using intercept evidence in a criminal trial. In the view of the proponents of this argument, the long-term interests of this country's citizens are better served by the use of intercept evidence in terrorist trials than by the indefinite perpetuation of a system of house arrest. The European Court of Human Rights has long recognised that the use of intercept evidence in a criminal trial is compatible with the provisions of the European convention on human rights, while house arrest is not.

The recent House of Lords ruling against the Government concerning the Belmarsh detainees, which has left the Government's domestic policy on handling terrorist suspects in tatters, compels the Government to make changes in the law. By repealing sections 17 and 18 of RIPA, one very sensible change would lead to more terrorist cases being brought to court.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs)

The hon. Gentleman was kind enough to point out that we support him on this new clause. Does he agree that even if, as the Government say, the use of intercept evidence would not be of assistance in bringing precisely those who were detained in Belmarsh to a trial—despite the fact that many of us feel that it is most appropriate that they be brought to trial—the argument still holds good for any number of future suspects who might be held in exactly the same circumstances?

Photo of Andrew Mitchell Andrew Mitchell Shadow Minister (Home Affairs)

The hon. Gentleman is absolutely right. He reinforces the key point that these people are currently outside the criminal justice system. Were the Government to concede the new clause, there is at least a chance that they could be brought back into the criminal justice system, which we all want to see.

Photo of Martin Smyth Martin Smyth UUP, Belfast South

Would not the hon. Gentleman also accept that it is a waste of money and time to intercept and do nothing with it when folk could be brought before the court on the evidence, of which some of us have been aware for many years, relating not just to international terrorism but to homespun terrorism and gangsterism?

Photo of Andrew Mitchell Andrew Mitchell Shadow Minister (Home Affairs)

The hon. Gentleman has made a fair point.

Photo of Peter Bottomley Peter Bottomley Conservative, Worthing West

Intercept evidence sometimes shows that suspicions are not well founded, especially when intercepts are conducted under warrant. I hope that there will be ways to make sure that investigating authorities, including, where necessary, the police, bear that point in mind, because in a number of well documented cases warrants for intercepts and for examining papers were obtained, but the accusations turned out to be wrong.

Photo of Andrew Mitchell Andrew Mitchell Shadow Minister (Home Affairs)

My hon. Friend has made an important point, which I shall address, and the justice system should clearly provide the balance that he has described.

Those who know about the workings of the criminal justice system generally agree that intercept evidence is valuable in cases involving serious and organised crime. Indeed, the Government's written ministerial statement made that very point last week. The attraction of new clause 6 is that it is simple and easy to understand. It permits intercept evidence to be used in a case brought by the new Serious Organised Crime Agency and affords this House an opportunity to demonstrate to SOCA at the first opportunity that it supports SOCA's important work and is willing to put weapons into its armoury to enable SOCA effectively to fight organised criminals.

Photo of Alan Beith Alan Beith Chair, Constitutional Affairs Committee

I was a member of the Newton committee. Will the hon. Gentleman bear in mind the fact that the primary use of intercept material is the acquisition of intelligence, not prosecution? As long as that point is recognised and people realise that the number of occasions on which intercept evidence can be used for prosecution may be few and limited, I accept his case that the law should allow its use.

Photo of Andrew Mitchell Andrew Mitchell Shadow Minister (Home Affairs)

Yes; I accept the right hon. Gentleman's point about how such evidence is gathered.

Turning to how intercept evidence is used in other countries throughout the world, hon. Members will appreciate that it is routinely deployed by prosecuting authorities in the United States and European countries with the exception, as I have already mentioned, of ourselves and southern Ireland.

As I said in Committee, Lord Lloyd of Berwick explained foreign countries' position on the use of intercept evidence in his inquiry into anti-terrorism legislation, which was published in 1996:

"The first and most obvious argument is that evidence of intercepted material is admissible to prove guilt in each of the countries which I have visited, and in every other country of which I have knowledge. The United Kingdom stands alone in excluding such material. Thus in the United States the use of intercept material in evidence is regarded as essential. In many instances, including high-profile cases involving the New York Mafia, convictions otherwise unobtainable have been secured by the use of intercept material. I put to officers of the FBI the suggestion that they were having second thoughts about the use of intercept material. I could find no support for this suggestion."

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Home Office)

The hon. Gentleman is quoting Lord Lloyd's report from 1996. The then Home Secretary, who is currently Leader of the Opposition, decided that Lord Lloyd's recommendation on intercept evidence should not be taken forward without a wider review. What has changed since then?

Photo of Andrew Mitchell Andrew Mitchell Shadow Minister (Home Affairs)

At least my right hon. and learned Friend the Leader of the Opposition responded, which is more than the Government have done. The Government took more than a year to respond to the publication of three separate reports.

I shall continue with the quotation from Lord Lloyd:

"In France I was told that intercept material has proved very valuable in terrorist cases. Thus, some 80 per cent. of the evidence against those suspected of involvement in the 1995 bombings is derived from intercept. Similarly, in Australia interception is regarded as an 'extremely valuable aid to criminal prosecution' . . . 664 prosecutions for offences ranging from murder to serious fraud were based on intercepted material, nearly 500 of those prosecutions being for drug offences. Convictions were obtained in 87 per cent. of the cases. Often, when presented with the evidence of an intercept, the defendant pleads guilty."

That is Lord Lloyd's considered opinion.

In Canada, the use of lawful interception evidence in court has been highly successful, with a conviction rate of more than 90 per cent. In 2001, lawful interception access helped to arrest approximately 100 organised criminals and solved 13 murder cases involving those individuals. In 2000, lawful interception access resulted in the seizure of more than $100 million in drugs and the conviction of several criminals for importing or producing drugs.

In America, Congress passed the Omnibus Crime Control and Safe Streets Act in 1968. Title 3 of that Act contained the first comprehensive federal legislative framework governing electronic surveillance for use in criminal investigations. Between 1987 and 1997, electronic surveillance conducted pursuant to title 3 assisted in the conviction of more than 21,000 criminals. In evidence to the Federal Communications Committee in Washington in 1999, Louis Freeh, director general of the FBI from 1993 to 2001, said:

"As demonstrated by the lives saved and the important investigations and prosecutions successfully completed, the use of electronic surveillance has served the public extremely well . . . Indeed, law enforcement agencies at all levels of government have uniformly found electronic surveillance to be one of the most important—if not the most important—sophisticated investigative tools available to them in the prevention, investigation and prosecution of many types of serious crimes. This tool has been critical in fighting terrorism, organised crime, kidnapping, drug trafficking, public corruption, fraud, and violent crime, and in saving numerous innocent lives. In many of those cases, the criminal activity under investigation could never have been detected, prevented, investigated, or successfully prosecuted without the use of evidence derived from court-authorised electronic surveillance."

In Britain, a chorus of heavyweight, authoritative and expert opinion—most recently, Metropolitan Police Commissioner Sir Ian Blair—favours lifting that ban. As I have said, Lord Lloyd recommended lifting the ban on the use of intercept evidence in his review of anti-terrorist legislation in 1996. The recommendation was made again in the debate on the Regulation of Investigatory Powers Act 2000, section 17 of which maintains the ban on the use of intercept evidence in court that was previously contained in the Interception of Communications Act 1985.

As my right hon. Friend Sir Brian Mawhinney has said, most recently the Newton committee, which was composed of senior Privy Councillors led by Lord Newton, published a report into the Anti-terrorism, Crime and Security Act 2001 on 18 December 2003. That report recommended that the blanket ban on the use of intercepted communications in court should be relaxed. Lord Newton and his highly experienced colleagues concluded:

"In our view, one way of making it possible to prosecute in more cases would be to remove the UK's self-imposed blanket ban on the use of intercepted communications in court. This was also the view reached by Lord Lloyd . . . to which we have seen no convincing response and by Lord Carlile when giving evidence to the Home Affairs Select Committee on his review of the Operation of Part 4 (of the Anti-terrorism, Crime and Security Act 2001)."

The Government did not accept the case for removing the ban on the use of intercepted communications as evidence when the Regulation of Investigatory Powers Act 2000 replaced the Interception of Communications Act 1985. The reasons given were, essentially, that allowing the use of intercepted communications as evidence would reveal the authorities' capabilities, prompting criminals to take more effective evasive action.

The Regulation of Investigatory Powers Act 2000 forbids the use of domestic intercepts in UK court proceedings, but no such bar exists to the use of foreign intercepts obtained in accordance with foreign laws. Bugged, as opposed to intercepted, communications or the products of surveillance or eavesdropping are also not barred, even if they were not authorised and were an interference with privacy. There is no bar on foreign courts using British intercept evidence, if the intelligence and security services are prepared to provide it.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham 6:45 pm, 7th February 2005

My hon. Friend has made the point that one of the Government's positions is a fear that the use of intercept evidence will persuade prospective terrorists not to use particular methods of communication. However, mast evidence—where a mobile telephone was receiving—is used in many criminal cases, but that has not persuaded criminals to desist from using mobile phones. Offenders go on using mobile phones, although mast evidence has proved critical in many cases.

Photo of Andrew Mitchell Andrew Mitchell Shadow Minister (Home Affairs)

My right hon. and learned Friend is right, and I shall come to the confusion about general intercepts of mobile phones in a moment.

I want briefly to discuss the compatibility between the use of intercept evidence and the European convention on human rights, which I mentioned earlier. Intercept evidence does not infringe the ECHR, whereas house arrest does. The ECHR is clear: intercepted communications do not infringe human rights and liberties provided that they are used proportionately. In other words, intercepted communications must serve a pressing need and be utilised in accordance with the law and in pursuit of one of the legitimate objectives spelled out in article 8(2). Article 8(2) refers to acting

"in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

In respect of article 6, the Khan v. United Kingdom case clarified the legitimacy of using intercept-type surveillance evidence. In respect of article 8, the case which was listed in the court report of The Times on 27 May 2004 verified the fact that the use of intercept communications complies with UK law and is compatible with the article.

There has been overwhelming support for a change in the prohibition on using intercept evidence from all quarters of society. Commentating on the Home Secretary's statement in response to the House of Lords's decision on the Belmarsh detainees, the director of Liberty, Shami Chakrabarti, said as follows:

"The Home Secretary is right to show respect for the House of Lords damning ruling. However, temporary restrictions upon a suspect's liberty are only legitimate as long as a criminal charge and trial are in prospect. We urge the removal of the legal bar on intercepted material being used in trials. Adherence to the rule of law should not be a game of cat and mouse. The Government should not swap one human rights 'opt out' for another."

Why are the Government so set against the use of intercept evidence in court? That is the next question that we must consider. The Government's argument for non-disclosure of this evidence has been based on the following rationale: first and foremost, technology is changing so fast that any regime put in place would soon be outdated; secondly, the fear that allowing intercept evidence heard in court could compromise national security, damage relationships with foreign powers or the intelligence services, or threaten the lives of sources; thirdly, they are also of the opinion that there is a widespread misconception that the making of intercept evidence admissible would increase the chances of convicting detainees; fourthly, the final argument is that once intercept evidence has been disclosed there may be a requirement to disclose the whole of the tapped conversation. That could be a passage of 10 minutes but one that had been tapped for a number of years.

These arguments have not persuaded many. Justice, the all-party law reform group, has also addressed the arguments advanced by the Government. It states:

"If the intelligence services of the United States, France, Israel, Canada and Australia can survive the use of such evidence in their courts, then British spies are surely equal to the challenge."

The Director of Public Prosecutions, Ken Macdonald, has made it clear that he backed the idea, and anti-terrorist sources stated that MI5 and MI6 have no objection in principle to such a move, but that the time and resources required to allow the product of telephone taps to be used as evidence in court would far outweigh the potential disadvantages.

What is the problem? The Government did not accept the case for removing the ban on the use of intercepted communications as evidence when the Regulation of Investigatory Powers Act 2000 was before the House, which replaced the Interception of Communications Act 1985. That was because they felt that allowing the use of intercepted communications as evidence would expose the authorities' capabilities, allowing criminals to take more effective evasive action. That, with the greatest respect, is complete nonsense. To begin with, it is not the impression that one gains from reading Lord Lloyd's recommendations on the matter. It also assumes that British serious criminals are a peculiarly insular lot whose information gathering does not penetrate far overseas.

In international operations, such as those against al-Qaeda, the US has published details of its intercept capacity in respect of landlines, mobile phones, satellite phones, diplomatic correspondence and satellite intercept of foreign communications. While the concerns of the intelligence and security services are understandable, it is clear that a balance needs to be struck between the public interest in prosecuting cases and the public interest in maintaining the effectiveness of intelligence-gathering procedures and capabilities. By excluding the use of potentially critical intercept evidence in the courts, this balance has not been struck.

Lord Newton's report put it very well:

"We understand the concerns of the intelligence and security services, which include not only the protection of sources and methods but also the need to ensure that interception for intelligence purposes is not impeded by the imposition of complex procedures to meet evidential requirements. We recognise that a balance has to be struck between the public interest in prosecuting particular cases and the public interest in maintaining the effectiveness of intelligence gathering techniques and capabilities. We consider, however, that the balance has not been struck in the right place if intercepted communications can never be used evidentially."

I remind the House that, under the new clause, relaxing the ban would not place an obligation on the prosecution to use intercept evidence. It would simply allow the submission of intercept evidence in court and stand on a par with what is available to other agencies dealing with serious crime and terrorism. What is more, there are already eclectic and disparate cases in which intercept evidence is used in criminal courts, albeit as an exception to the general rule, and there has not been any damage to police or intelligence service operational capabilities and methodology. I submit that these experiences puncture the Government's objections to the use of intercept evidence and render the present state of the law in this area quite ludicrous.

I turn to some examples of why the present law on the non-disclosure of intercepts is ridiculous—

Photo of Rob Marris Rob Marris Labour, Wolverhampton South West

I point out to the hon. Gentleman that with a time limit on this debate—some of us have some sympathy with what he says—if we cannot hear the Government's position, we shall surely have to abstain.

Photo of Andrew Mitchell Andrew Mitchell Shadow Minister (Home Affairs)

The hon. Gentleman is absolutely right. It is outrageous that the Government have curtailed this debate to half an hour. The fault rests exclusively with the Government. I will give way to any Member who wishes to intervene on me apart from the Minister, who is responsible for the guillotine.

As things stand, a taped phone conversation between a suspect and a third party on a landline or a mobile phone, as part of a public network, is inadmissible. It can be used only for intelligence purposes. That contrasts significantly with intercept evidence that is obtained using other methods. Telephone conversations on an internal network can be used, and so can material where one of the people on the line is an undercover officer. There is no prohibition on the use in a criminal court of interceptions that have occurred within an internal network. Equally, if a listening device is placed in a person's house and a conversation is tape recorded or transmitted by a wireless device somewhere else and recorded at that location, that intercepted conversation provides admissible evidence in a court of law. Individuals can be wired up with recording devices attached to their body. Again, the conversations that they have with other people are admissible.

Taps from conventional bugs not attached to phones can also be used in court. A decision in 2004 by the courts held that a recording of what a person said on a telephone picked up by a surveillance device placed in his car, which did not record any speech by the other party, was not an interception of a communication in the course of its transmission. The recording was made at the same time as being transmitted, but the transmission was not recorded. There was just the voice from the sound waves in the car. Accordingly, evidence from the tap could be used in court. The case clearly highlights the absurdity of the current law.

These examples, and there are many others—the case of Ian Huntley comes to mind—show what a mess the law is on the admissibility of intercept evidence. In any event, the exceptional categories in section 18 of RIPA show that intercept evidence can be introduced in a criminal trial by the prosecution in cases involving what is currently defined as a relevant offence, which includes not only offences under RIPA—for example, making an unauthorised disclosure where an intercept warrant has been issued or renewed under the Official Secrets Act 1911—but cases that are before the Special Immigration Appeals Commission and the Proscribed Organisations Appeal Commission.

I turn briefly to the proper procedures and safeguards for non-disclosure that are already in place—

Photo of Paul Farrelly Paul Farrelly Labour, Newcastle-under-Lyme

As the hon. Gentleman knows, I have some sympathy with his argument because I served on the Committee that considered the admissibility of wiretap evidence. Will he explain why in Committee he advanced a narrow and tightly drawn amendment, whereas he is now introducing a coach-and-horse amendment without any of the safeguards that he and other Opposition Members proposed in Committee?

Photo of Andrew Mitchell Andrew Mitchell Shadow Minister (Home Affairs)

The hon. Gentleman makes a fair point. In Committee, I was seeking to take a narrow view and test the opinion of the Committee. Since then I have talked to right hon. and hon. Members on both sides of the House and to lawyers outside the House. I have decided that a more permissive amendment would be appropriate. That is why I am speaking to the amendment.

I was explaining that proper procedures and safeguards for non-disclosure are already in place. The House will know that, as a general rule, the prosecution has to disclose all material that it possesses—for and against its case. However, under the Criminal Procedure and Investigations Act 1996, applications can be made to the court when there is a dispute about whether the prosecution should disclose certain material in the public interest. When the prosecution prepares its list of materials to hand over to the defence, it can indicate which material it considers it need not disclose because of public interest immunity. It must also consider the relevance of the material. Where vast quantities of intercept are not relevant to any issue relating to the case, the disclosure rules do not require that this material be disclosed, irrespective of any question of public interest immunity.

To protect against any compromise in national security or to protect sources' lives, the prosecution's duty to disclose evidence is limited, so it need not disclose material where the public interest so dictates. In some cases, the prosecution will take the view that the material should be withheld—for example, where it is so sensitive that it is subject to public interest immunity. The prosecution must have genuine arguments for not disclosing material on public interest immunity grounds, which provide added protection for the defendant.

Public interest immunity also helps the UK to co-operate with other countries, because it allows the police and other prosecuting bodies to keep out of court sensitive material that other countries do not want published. So contrary to the Government's claim, the use of intercept material would not have a negative effect on the relationship between British and foreign security agencies.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs) 7:00 pm, 7th February 2005

The intervention from Paul Farrelly, who asked why the hon. Gentleman decided to extend the new clause to cover a wider range of offences, was a relevant one. But surely the answer is that there is no logic in restricting such a provision to terrorist offences, as the hon. Gentleman did in Committee—indeed, originally I shared his view—if one has the twin locks of the warrant concerning the acquisition of such information, and immunity from disclosure on public interest grounds.

Photo of Andrew Mitchell Andrew Mitchell Shadow Minister (Home Affairs)

The hon. Gentleman makes a very fair point.

The withholding of sensitive information is an uncontroversial and unexceptional daily occurrence in the criminal courts. There is a clear public interest in preserving the anonymity of informers; of the identity of a person who has allowed his premises to be used for surveillance, and of anything that would reveal his identity or the location of his premises; of other police observation techniques; and of police and intelligence service reports, manuals and methods. The police order manual, for example, is protected from disclosure. Techniques relating to intercept systems, procedures, technology and methodology fall into the same category.

Photo of Mr Chris Smith Mr Chris Smith Labour, Islington South and Finsbury

As a member of Lord Newton's Privy Councillor review committee, I should tell the hon. Gentleman that, with great respect, I believe that he has not got this new clause completely right and I shall not support it in the Division Lobby. However, many Labour Members are concerned about this issue and hope that the Home Secretary will give it very careful consideration in the coming months. Anything that gives us an alternative to the draconian method of locking people up without proper trial and charge—be it in Belmarsh or in their own home—is devoutly to be desired.

Photo of Andrew Mitchell Andrew Mitchell Shadow Minister (Home Affairs)

I am grateful to the right hon. Gentleman for his intervention in support of my case. I understand why he feels unable to join us in the Lobby tonight, but that is a pity, because he would have brought with him a very large number of his Labour colleagues who agree with the case that I am putting.

To summarise my case, almost every other country, including the US, allows the use of intercept evidence in court. Such evidence is deployed in those countries with significant success in cases involving organised crime and terrorism. Independent reports by Lords Lloyd and Newton, and 1999's consultation paper on the intercept of communications, recommended the use of intercept material as evidence. The use of such evidence is consistent with the principles of the European convention on human rights, and the law already permits its use.

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Home Office)

There have been five Home Office reviews of this issue, some of which were overseen by the Leader of the Opposition when he was Home Secretary, and if we felt that there was an easy answer to it, we would want to pursue it. All of us want measures that enable us to convict criminals. We have offered the Leader of the Opposition and the leader of the Liberal Democrats, under Privy Council rules, the opportunity to meet the Prime Minister to discuss these issues. The fact is that we already use intercept evidence to convict criminals, and without prejudicing the close relationship between our intelligence services and the police. Indeed, no other country has such a close relationship, and not all countries make use of the European convention on human rights—

It being two and a half hours after the commencement of proceedings, Mr. Deputy Speaker put the Question already proposed from the Chair, pursuant to Order [3 February].

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

The House divided: Ayes 175, Noes 288.

Division number 71 Orders of the Day — Serious Organised Crime and Police Bill — [1st Allotted Day] — New Clause 6 — Interception of communications

Aye: 175 MPs

No: 288 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Question accordingly negatived.

Photo of Gwyneth Dunwoody Gwyneth Dunwoody Labour, Crewe and Nantwich

On a point of order, Mr. Deputy Speaker. Have not the last 35 minutes clearly demonstrated that we are in danger of destroying the rights of the House of Commons, since a matter of considerable importance—intercepting material in cases of terrorism—has simply not been debated? Although one Conservative Member referred to the issue, not a single other Member from any party was able to participate in the debate. Is it not time that we reconsidered our views about the brutal guillotining of legislation?

Photo of Andrew Mitchell Andrew Mitchell Shadow Minister (Home Affairs)

Further to that point of order, Mr. Deputy Speaker. I strongly agree with what the hon. Lady has just said. This is an extremely important and topical issue and a matter of great concern to the legal profession and all who care about civil liberties and civil rights. As a result of the draconian programme motion that the Government put before the House last Thursday, we have been deprived of the opportunity to debate these crucial matters. The blame rests squarely on the Government who tabled that programme motion.

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

This particular debate is taking place under the rules of the programme motion, which the House itself agreed. It is not a matter for the Chair and the length of the contributions of individual hon. Members is entirely a matter for them.

New Clause 10

Interference with contractual relationships so as to harm animal research organisation

'(1) A person (A) commits an offence if, with the intention of harming an animal research organisation, he—

(a) does a relevant act, or

(b) threatens that he or somebody else will do a relevant act, in circumstances in which that act or threat is intended or likely to cause a second person (B) to take any of the steps in subsection (2).

(2) The steps are—

(a) not to perform any contractual obligation owed by B to a third person (C) (whether or not such non-performance amounts to a breach of contract);

(b) to terminate any contract B has with C;

(c) not to enter into a contract with C.

(3) For the purposes of this section, a "relevant act" is—

(a) an act amounting to a criminal offence, or

(b) a tortious act causing B to suffer loss or damage of any description.

(4) For the purposes of this section, "contract" includes any other arrangement (and "contractual" is to be read accordingly).

(5) For the purposes of this section, to "harm" an animal research organisation means—

(a) to cause the organisation to suffer loss or damage of any description, or

(b) to prevent or hinder the carrying out by the organisation of any of its activities.

(6) This section does not apply to any act done wholly or mainly in contemplation or furtherance of a trade dispute.

(7) In subsection (6) "trade dispute" has the same meaning as in Part 4 of the Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52), except that section 218 of that Act shall be read as if—

(a) it made provision corresponding to section 244(4) of that Act, and

(b) in subsection (5), the definition of "worker" included any person falling within paragraph (b) of the definition of "worker" in section 244(5).'.—[Caroline Flint.]

Brought up, and read the First time.

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Home Office)

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

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

With this we may take the following amendment (b) to new clause 10, after second 'to' insert

'an animal research organisation or'.——

Amendment (a) to new clause 10, in line 15, leave out

'loss or damage of any description' and insert 'significant loss or damage'.

Government new clause 11—Intimidation of persons connected with animal research organisation—

'(1) A person (A) commits an offence if, with the intention of causing a second person (B) to abstain from doing something which B is entitled to do (or to do something which B is entitled to abstain from doing)—

(a) A threatens B that A or somebody else will do a relevant act, and

(b) A does so wholly or mainly because B is a person falling within subsection (2).

(2) A person falls within this subsection if he is—

(a) an employee or officer of an animal research organisation;

(b) a student at an educational establishment that is an animal research organisation;

(c) a lessor or licensor of any premises occupied by an animal research organisation;

(d) a person with a financial interest in an animal research organisation;

(e) a customer or supplier of an animal research organisation;

(f) a person who is contemplating becoming someone within paragraph (c), (d) or (e);

(g) a person who is, or is contemplating becoming, a customer or supplier of someone within paragraph (c), (d), (e) or (f);

(h) an employee or officer of someone within paragraph (c), (d), (e), (f) or (g);

(i) a person with a financial interest in someone within paragraph (c), (d), (e), (f) or (g);

(j) a spouse, civil partner, friend or relative of, or a person who is known personally to, someone within any of paragraphs (a) to (i);

(k) a person who is, or is contemplating becoming, a customer or supplier of someone within paragraph (a), (b), (h), (i) or (j); or

(l) an employer of someone within paragraph (j).

(3) For the purposes of this section an "officer" of an animal research organisation or a person includes—

(a) where the organisation or person is a body corporate, a director, manager or secretary;

(b) where the organisation or person is a charity, a charity trustee (within the meaning of the Charities Act 1993);

(c) where the organisation or person is a partnership, a partner.

(4) For the purposes of this section—

(a) a person is a customer or supplier of another person if he purchases goods, services or facilities from, or (as the case may be) supplies goods, services or facilities to, that other; and

(b) "supplier" includes a person who supplies services in pursuance of any enactment that requires or authorises such services to be provided.

(5) For the purposes of this section, a "relevant act" is—

(a) an act amounting to a criminal offence, or

(b) a tortious act causing B or another person to suffer loss or damage of any description.

(6) The Secretary of State may by order amend this section so as to include within subsection (2) any description of persons framed by reference to their connection with—

(a) an animal research organisation, or

(b) any description of persons for the time being mentioned in that subsection.

(7) This section does not apply to any act done wholly or mainly in contemplation or furtherance of a trade dispute.

(8) In subsection (7) "trade dispute" has the meaning given by section (Interference with contractual relations so as to harm animal research organisation).'.

Amendment (b) to new clause 11, after 'act' in subsection (1)(a), insert

'or A or someone at the instigation of A does a relevant act,'.

Amendment (c) to new clause 11, at end, insert

'(c) "a person with a financial interest" includes a person undertaking any regulated activity or who is an authorised person within the meaning of the Financial Services and Markets Act 2000 (c. 8).'.

Amendment (a) to new clause 11, in subsection (5)(b), leave out

'loss or damage of any description' and insert 'significant loss or damage'.

Government new clause 12—Penalty for offences under sections (interference with contractual relations so as to harm animal research organisation) and (intimidation of persons connected with animal research organisation).

Government new clause 13—Animal research organisations.

Government new clause 14—Extension of sections (interference with contractual relations so as to harm animal research organisation) and (intimidation of persons connected with animal research organisation).

New clause 5—Economic damage to companies—

'(1) A person ("person A") commits an offence under this section if by acting in accordance with subsection (2) he causes financial damage to another person ("person B"), with the purpose of representing to person B, or persuading person B—

(i) that he should not do something that he is legally entitled to do; or

(ii) that he should do something that he is not under any legal obligation to do.

(2) A person acts in accordance with this subsection if those actions—

(a) involve the harassment of or violence against person B or a connected person, or

(b) involve damage to property of person B or a connected person.

(3) A connected person, for the purposes of subsection (2) above, means—

(a) a customer of person B;

(b) a shareholder of person B;

(c) an employee of person B;

(d) a director of person B;

(e) where person B is a partnership, its partners;

(f) a supplier of goods or services to person B;

(g) a supplier of goods or services to persons within paragraph (f) above;

(h) an individual normally residing with any individual falling within paragraphs (a) to (g) above.

(4) A constable may arrest without warrant anyone whom he reasonably suspects to be committing an offence within subsection (1) above.

(5) A person guilty of an offence under this section shall be liable—

(a) on summary conviction, to imprisonment for a term not exceeding 51 weeks or to a fine not exceeding the statutory maximum, or to both;

(b) on conviction on indictment, to imprisonment for a term not exceeding three years or to a fine, or to both.'.

Government amendments Nos. 99 and 100

Amendment No. 8, in title, line 8, after 'orders;', insert

'to make provision in connection with economic damage to companies;'.

Government amendment No. 110.

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Home Office)

As with the previous group of amendments, we had extensive discussions in Committee on animal rights extremists and I said that the Government would table amendments on Report to tackle more effectively unlawful campaigns by animal rights extremists that are aimed at causing economic damage to organisations involved in animal research through pressure on third parties to break commercial or other links. I hope that hon. Members on both sides of the House will recognise that these amendments fulfil that commitment. I have met Opposition Front-Bench spokesmen to discuss them in more detail.

We believe that properly regulated research on animals is essential to make progress in treating disease—for example, Alzheimer's disease, which affects more than half of those aged over 85. The abnormalities of Alzheimer's disease have been shown in primates and certain strains of mice, and animal studies provide opportunities for understanding Alzheimer's disease and studying potential new treatments. We need animal research if we are ever to discover a cure for Alzheimer's disease.

We have perhaps the most rigorous system of regulation of animal experiments of any country. Licences may be granted only when experts in the animals scientific procedures inspectorate are persuaded that the likely benefits of an experiment outweigh the likely harm to the animals concerned and that no alternatives can replace the use of animals, reduce the number of animals used or refine the procedures to minimise suffering.

Many people believe that animals should not be used for research and I respect that view. They have every right to express it and the great majority of them do so wholly peacefully and properly to try to persuade people to change their minds and to change the law. However, some of those who are opposed to research on animals have not used lawful methods of persuasion. They have sought to impose their views on others through harassment, threats and physical attacks. The purpose of the Government amendments is to tackle those campaigns.

The amendments introduce five new clauses which create two new offences. New clause 10 creates a new offence of a criminal or tortious act against a person that causes loss or damage with the intention of harming an animal research organisation, when the act is likely or intended to cause the person not to perform a contract or similar arrangement, to end a contract or not enter into one.

Photo of Janet Dean Janet Dean Labour, Burton

Can my hon. Friend assure me that "animal research organisation" includes establishments where animals are bred for experimentation? She will know of the problems in my constituency and that of Michael Fabricant concerning a guinea pig farm. Many of our constituents have been severely affected. I thank the Minister for this legislation and her hard work, but I would like the assurance that I have requested.

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Home Office)

I can assure my hon. Friend that the provision extends to breeding establishments. I commend her and others who supported the Hall family at Darley Oaks during many years of terrifying attacks and protests against them. Many hon. Members are aware of the attack on the grave of a family member not so long ago.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs)

I would like to associate myself and my hon. Friends with the hon. Lady's comments.

We broadly welcome the new clauses, but new clause 10(3)(a) contains the slightly curious phrase "amounting to a criminal offence", instead of an act which is a criminal offence. There is no such qualification in paragraph (b) in which a tortious act is apparently self-explanatory. Why was that form of words used in paragraph (a)?

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Home Office)

One of the areas that we have tried to cover is when there is a criminal or tortious act. A tortious act is one against civil law. Usually, the remedy for a victim of a tort is to sue the alleged perpetrator in the civil courts. We are considering how to extend that so that an offence that could amount to a criminal offence can be covered by this clause in the criminal courts. We are including tortious acts that cause loss or damage because we believe that people who suffer nuisance campaigns designed to disturb or frighten them should be able to look to law enforcement to pursue their case. A court would have to be convinced that a tort had caused or, if threatened, would cause loss or damage for an offence to be committed. However, I will consider what the hon. Gentleman said and return to the matter a little later.

New clause 10 creates a new offence of committing a criminal or tortious act against a person which causes loss or damage. The offence is committed when the intention is to harm an animal research organisation and that includes those who breed animals for research. That is to ensure that it effectively tackles the evolving extremist tactic of targeting people who supply goods or services, such as courier companies, insurance companies and so on, making it increasingly difficult for an animal research organisation to function as its commercial partners are frightened off.

Turning to Opposition amendment (b) to new clause 10, I agree with Mr. Djanogly that the provision should catch cases when the criminal or tortious act is done to pressurise a supplier to or customer of an animal research organisation to end their dealings with the organisation. I assure him that the provision already has that effect. He wants to add the words "animal research organisation or" before "a third person", but third person already covers every person or body other than the person doing the criminal or tortious act and the person they are pressurising. We believe that it covers animal research organisations extensively and, therefore, that the amendment is unnecessary.

New clause 11 creates a second offence of threatening someone with an unlawful act because they are connected to an animal research organisation, whether as a supplier, customer or other associate, at up to two, and in some cases more, removes. That is aimed at giving prosecutors an effective tool for prosecuting threats made against people because of their direct or indirect connection with an animal research activity. In Committee, we heard various examples of how wide a net animal rights extremists throw to attack indirectly the organisation that is the source of its protest and concern.

Hon. Members will see that both offences can be committed as the result of the commission of a tortious act as well as a criminal act. That is an important aspect of our proposals. We all know that animal rights extremists have used a range of tactics that have caused real loss and damage to their victims. Some have been tortious rather than criminal—for example, fly-posting leaflets on lamp posts in a neighbourhood that falsely assert that a victim is a paedophile is libellous. As a result, it has been for the affected individual to seek redress for the damage caused, but we believe that the state should be able to come to the help of victims of a campaign of unlawful acts aimed at intimidating or coercing them.

Amendments (a) to new clauses 10 and 11 are concerned with that issue, but I do not believe that introducing a test of significance to the loss or harm required to be caused by a relevant tortious act would be sensible in relation to either offence. It would make the scope of the offences entirely uncertain. With our formulation, any tortious act causing loss or damage can form the basis of an offence with the seriousness of the loss or damage forming part of the court's consideration of a penalty in the event of a conviction.

Photo of Evan Harris Evan Harris Liberal Democrat, Oxford West and Abingdon

I hope that the Minister understands that both amendments (a) are probing amendments. There could be concern that the provisions are widely drafted, in that nuisance and trespass are tortious acts. Is it her intention that the provision should catch people who are, for example, demonstrating by handing out leaflets outside an organisation? That could be considered a nuisance and might involve a trespass without significant loss or damage and might be seen to be part of what we would encourage as lawful protest.

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Home Office)

To capture legitimate protests is not the purpose of our new clauses: an unlawful act has to be committed to trigger an offence under the provisions. We do not intend to make leafleting against an organisation unlawful. However, the example I gave was of leaflets alleging that someone is a paedophile being distributed around a neighbourhood as a means of intimidation and of getting that person to stop supplying a company that is involved in animal research. We do not intend those who legitimately leaflet against an organisation or the use of animals in experiments to be caught under the new offence.

Photo of Evan Harris Evan Harris Liberal Democrat, Oxford West and Abingdon 7:30 pm, 7th February 2005

Although I am conscious of the time, this is our only opportunity to debate these new clauses. I accept that the Minister's intention is to catch the serious defamation that she described, not lawful protest. My question is whether the wording provides for that distinction.

Also, the Minister did not answer the question asked by my hon. Friend Mr. Heath about why the words "an act amounting to" precede "a criminal offence" in new clause 10(3)(a) and new clause 11(5)(a).

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Home Office)

I said that I would come back to the point raised by the hon. Member for Somerton and Frome, and I shall.

If leaflets contain material deemed threatening or offensive, the threatening limb of the intimidation offence may be engaged, but most people involved in peaceful legitimate protest make their argument against an activity without threatening or intimidating the people involved. I hope that that clarifies the provision.

Opposition amendment (b) to new clause 11 proposes to extend the offence in the new clause. The amendment would not extend the offence significantly, since the words it inserts would still be governed by the preamble to subsection (1), namely

"with the intention of causing a second person (B) to abstain from doing something which B is entitled to do (or to do something which B is entitled to abstain from doing)".

The amendment would expressly catch a case where an unlawful act was accompanied by the threat of further unlawful acts unless the victim yielded. That situation is more than adequately covered by new clause 11. Furthermore, our definition of a person with a financial interest for the purpose of new clause 11 is simple and straightforward and I am not convinced that it needs to be changed as proposed in amendment (c).

New clause 12 proposes a maximum five year sentence for both the offences. We do not propose such a long maximum sentence lightly. We do so because we think that the campaigns of the extremists are very serious and designed to disturb peoples' peace of mind and coerce them. New clause 13 defines an animal research organisation for the purposes of the amendment. It includes the employers of those who hold individual or project licences for research under the Animals (Scientific Procedures) Act 1986 or are specified in certificates issued in respect of places that may be used for breeding and supplying animals for research, and the owners or lessors of the places where they work.

We believe that the tactics being used by animal rights extremists are so serious that tough new measures are needed to address them. There is a pattern of behaviour and an organised network of people carrying out well planned unlawful acts. That is why we are restricting the scope of the clause to persons connected to animal research organisations. Various views on that were expressed during our debate in Standing Committee. We recognise that, in future, there might be other, similar campaigns by extremists affecting organisations working in other fields. New clause 14 therefore proposes that the offences be capable of extension by means of an order subject to the affirmative procedure, if it can be shown that there has been a series of incidents that would have been offences under the new provisions had they been committed against someone connected to an animal experimenting company. We believe that that will provide adequate safeguards to ensure that the new offences are extended only where necessary and appropriate.

We are mindful that the provisions of the new clauses are historic in that they tackle certain types of protest. We realise that many people outside the House are concerned that they will affect peaceful and legitimate debate and protest. I hope that they will accept my assurances that the provisions will not do so. We are responding to a specific problem that has emerged: we are faced with a group of people who have developed cowardly tactics of attacking vulnerable third parties to put pressure on organisations carrying out research involving animals. Our new clauses are a targeted and proportionate response to their campaign. The penalties provided reflect the appalling consequences of the campaign on the commercial partners, customers and suppliers of animal research organisations, and the relatives and friends of those associated with research organisations.

Government amendments Nos. 99, 100 and 110 are consequential on new clauses 10 to 14.

I fully understand the concern and thinking that lie behind new clause 5 and I am sympathetic to them. The new clause is clearly designed to protect any company or other undertaking that is the target of harassment, violence or criminal damage that then results in it being caused financial damage. However, we have a major concern about the new clause: it is clear that it would be triggered only when financial damage had actually been suffered. The offences in our own new clauses are triggered by threats to take unlawful action—that is a crime or a tort causing damage—aimed at specified persons connected with an animal research organisation; there is therefore no requirement for the person to have suffered damage. We are trying to prevent the damage from taking hold. The measure that we propose does not rest, as new clause 5 does, upon being able to show that damage has been caused.

In addition, I am not convinced that the list of connected persons set out in new clause 5 is comprehensive enough. We are concerned that it could be exploited by those seeking to target particular companies. I therefore oppose new clause 5 and amendment No. 8, which would amend the long title of the Bill. I am sympathetic to the thinking that lies behind the proposals, which is why the Government have introduced their own measures to protect companies. I hope that hon. Members will discern the similarities between new clause 5 and Government new clause 10.

The Government new clauses will provide significant additional protection for animal research organisations so that they can continue their vital service to the health of the nation. I hope that they will have the full support of the House.

Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Home Affairs)

I welcome the progress made both during and after the Committee stage on issues relating to animal rights extremism. We will now have in the Bill provisions that, if it is enacted, should provide extra assistance in protecting the public from the campaigns of violence and intimidation being waged by animal rights extremists. The measures will make it an offence to harass two or more people on separate occasions; they should also help to prevent the harassment of a person in his home, although the Bill as it stands does not extend that protection to a person's workplace, where many such incidents occur.

I thank the Minister for having taken the time to meet me last week to discuss the new clauses that the Government have now tabled. In normal circumstances, we would have hoped for a far more substantial period of consultation—not least to consider the legal language and concepts in the new clauses, which are both novel and complicated. None the less, my hon. Friends and I welcome the Government's decision to table the additional measures to combat animal rights terrorism. They seem finally to have realised the need to tackle a disturbing trend in the activities of animal rights terrorists.

I know from my constituency and elsewhere that the last few years have brought increasing numbers of attacks on so-called secondary and tertiary targets. Primary targets—the animal research organisations themselves, such as Huntingdon Life Sciences—have been able to make progress, albeit at great cost, in the fight against the criminals. By increasing the use of injunctions against known terror groups, they have been able significantly to reduce the incidence of attacks on their facilities and their staff.

However, the result of those successes has been a switch in the tactics used by those desperate groups and individuals. Before, they attacked the animal researchers in their laboratories; now, the easier option for the terrorists, which enables them to avoid the injunctions, is to unleash violence and intimidation on people away from their place of business—for instance, in their homes, furtively and in the middle of night— or against anyone seen to be in any way connected to the research organisations. Such secondary targets could include a building contractor working on the primary research facility. Even more tenuously, a tertiary target could be as distant as a fund manager maintaining a shareholding in that building company, or even, as was the case in Staffordshire, a pub frequented by workers at the secondary target.

I was recently made aware of an example involving Fidelity, one of the world's largest fund management companies. In the UK, Fidelity was targeted by animal rights extremists who disrupted a key part of its business activities—a roadshow event, in which it marketed its products to independent financial advisers. The so-called justification for that action was Fidelity's investment activity. It was enough that it had invested in BOC, which in turn had a business relationship with Huntingdon Life Sciences. BOC, of course, has since withdrawn its custom from HLS. Unsurprisingly, individuals and businesses in that chain are struggling to cope with the barrage of violence that is unleashed against them because they are perceived to be connected with the main target. As I pointed out on Second Reading, many targeted companies have agreed to sever their links with animal research organisations.

Few organisations can afford the effort and the tens of thousands of pounds required to obtain injunctions. Indeed, many companies that could afford injunctions are reluctant to obtain them as they regard it as the role of the state to defend them and their employees. Accordingly, many companies have been forced, often with great reluctance, to abandon perfectly legal business operations—out of necessity, they believe—so that they can safeguard their employees and their premises. Along with a number of individuals and groups I have, for a number of years, highlighted the urgent need to extend the law to protect these wider victims of animal rights terrorism. Groups representing city institutions, such as the National Association of Pension Funds, are waiting to take their lead from Government, so naturally I am delighted that the Government have finally decided to heed the calls for action. To put it simply: better late than never.

Government new clause 10, entitled "Interference with contractual relationships so as to harm animal research organisation", would make it a criminal offence for someone to carry out or threaten to carry out a criminal or tortious act intended to cause, or likely to cause, the victim not to enter into a contract with a third party, or to breach an existing contract. A tortious act is a non-criminal act, for which damages are usually claimed in a civil court. For someone to be liable for the offence they must act with the intention of harming an animal research organisation. Harming in this context means causing any type of loss or damage to the organisation or, alternatively, hindering that organisation in carrying out any of its activities. I am pleased that the Government have come round to the idea of introducing a measure to protect the economic interests of those affected by extremists. It is those very economic interests that animal rights terror groups unjustly seek to destroy.

The clause clearly springs from the foundations provided by various people in recent months. The Minister mentioned new clause 5, which my hon. Friends and I tabled and which is in many respects similar to Government new clause 10. Overall, we support the Government new clause as well as the other Government new clauses, but there are a number of areas on which we would be grateful for clarification. First, can the Minister confirm that the definition of a person in Government new clauses 10 and 11 is intended to cover legal as well as natural persons—in other words, companies? If not, the Government will not have gone as far as I aimed to go in new clause 5, which would have provided protection for companies.

On the other hand, if companies are covered, would the drafting of new clause 10 mean that the perpetrator of the offence, person A, could be a company or a non-registered group such as Stop Huntingdon Animal CrueltySHAC? That is important, because SHAC has often claimed that it cannot be prosecuted because it is not an organisation as such. We welcome the step-by-step requirements that apply to the offence in Government new clauses 10 and 11, including the carrying out or threatening of a wrongful act, the resulting damage to a contractual relationship or intended relationship, and the necessary intention on the part of the perpetrator.

The need for all those requirements to be met should protect against wrongful convictions, but has the Minister considered the practical difficulties in establishing all those steps satisfactorily so that convictions can be secured? There is no point in having available new offences with which to charge people if it proves too difficult to secure convictions. I should be grateful for clarification about whom the new clause is intended to protect.

The drafting of subsection (2) is entirely free of ambiguity—

Photo of Evan Harris Evan Harris Liberal Democrat, Oxford West and Abingdon

The hon. Gentleman is making the point, as he has done before, that it may be difficult to catch people under the provision because of the lack of police intelligence. There is a need to beef up police activity. The problem is not the width of the provision, although it is rather wide. "Hinder", for example, is a wide term, and extends beyond harm.

Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Home Affairs)

The hon. Gentleman makes a fair point, and I shall come on to deal with the width of the provision. None the less, it sets out a series of steps, and the Minister should consider whether the process will be satisfactory in securing convictions.

Our amendment (b) aims to maximise the protection afforded by Government new clause 10. I accept what the Minister said, but the new clause may require further review. We will not, however, push the matter to a vote. In the scenario envisaged in subsection (2) the actions or threats of the perpetrator—person A—would have to damage the contractual arrangements between the victim, known as person B, and a third person known as person C. A tertiary target would appear to be covered by that drafting.

Take, for example, a company supplying building materials to a building contractor working at an animal research facility. If the supplier were forced to terminate the contract to supply the builders, they would be protected as person B. What is the position of secondary targets? I cannot imagine that the Government have deliberately sought to exclude them, but the drafting may leave room for that possibility, because the term "animal research organisation" is specifically used in the provision. The question is whether those research organisations would fall within the definition of "a third person". In my example, would the contractual relationship between the building contractor and the animal research facility be protected? We would be grateful if the Minister addressed that point.

We have another query about Government new clauses 10 and 11. As an alternative to a criminal act, both clauses would allow for the offending act to be a tortious act that causes the victim to suffer loss or damage of any description. Could the Minister explain whether the intention is to catch the many and varied torts that exist under English law? Perhaps what was originally envisaged was trespass against the person, such as assault, or trespass on land. Defamation is also a tort—was the intention that threatening to libel someone would be enough to form the basis of the offence? The Minister gave the example of neighbours being wrongfully and shamefully informed by SHAC that a targeted individual was a paedophile. I will not go into any further legal details, but I would be grateful if the Minister addressed that issue.

Liberal Democrat amendment (a) to Government new clause 10—the same wording is used in amendment (a) to new clause 11—aims to quantify loss or damage, presumably so that minor tortious acts are not caught. I sympathise with that approach, but it is rather a blunt instrument. I acknowledge, however, that the other place may wish to review the issue in greater detail. The offence created by Government new clause 11 would arise where person A intimidates person B because B is connected with an animal research organisation. A connected person would include employees and their family members, customers and suppliers. The intimidation would be a threat by person A that they, or someone else, would commit a criminal or tortious act causing loss or damage of some description. The perpetrator's intention must be to cause the victim to abstain from doing something that he is entitled to do, or to do something that he is entitled not to do.

Will the Minister clarify the meaning of

"a person with a financial interest in an animal research organisation" in new clause 11? We took that to include shareholders. In amendment (c) to new clause 11, we propose the insertion of a new paragraph to ensure that the provision covers anyone who is undertaking any regulated activity or who is an authorised person under the Financial Services and Markets Act 2000, including fund managers. The Minister said that that was already covered, and I am grateful for her clarification.

Amendment (b) would insert additional wording in subsection (l)(a) of Government new clause 11, and aims to equalise the protection offered by the two new clauses. It seems that in new clause 10, the carrying out of, as well as a threat to carry out, a criminal or tortious act would allow for conviction where contractual relationships were affected. Yet new clause 11 appears to contain a loophole, as it refers only to threatening, rather than carrying out, a criminal or tortious act. In theory, if an animal rights extremist carried out an act to intimidate someone, without having first threatened them, would they not be caught under the provision? If that were the case, some of the connected persons listed in new clause 11 might be protected by new clause 10. However, that would be the case only if they were involved in a contractual relationship that they had been forced to breach, abandon or not enter into as a result of intimidation. For other types of connected person, such as spouses or friends, new clause 10 with its focus on contracts would be of no use.

In new clause 12, we welcome the proposed five-year maximum sentence for offences under new clauses 10 and 11. That rightly reflects the seriousness with which those activities should be treated. Similarly, we agree with the Government's proposal to require the consent of the Director of Public Prosecutions for proceedings to commence. That seems a sensible way to address the politically contentious nature of this matter, which requires a fair balance to be struck between the right to non-violent freedom of expression, the need to protect individuals and businesses from unacceptable criminality, and the need to achieve a degree of standardisation across the country.

Subject to the issues that I have raised, it will be clear to the House that on the whole, my hon. Friends and I support the Government's proposals. However, those proposals do not go far enough. In particular, without detracting in any way from the need to protect individuals, I argue that further protection for company activity is needed. In Committee I tabled a number of amendments that would have provided that, but they did not receive Government support. Confidentiality orders should extend beyond directors to prevent the identity of threatened company shareholders from being made available to the public. The need for that cannot be better demonstrated than by citing the example of HLS, which was forced to undertake the burden of re-listing in Maryland in the USA, because that jurisdiction allowed shareholder details to be kept out of the public domain. Similarly, we sought to protect the identity of lenders to companies, as their details allow them to be singled out as secondary targets.

Most significantly, by tabling new clause 5 on Report we sought to introduce an offence of causing economic damage to companies. For the first time, that would have specifically protected all companies and connected persons from the financial damage resulting from harassment, violence and damage to the property. In new clause 14 the Government propose that their new offences could be extended by way of delegated legislation to organisations involved in areas other than animal research. Although we accept that the Government are taking legislation further down the road, we do not believe that this piecemeal approach goes far enough. There are already industries other than animal research that are suffering at the hands of extremists. Where animal research organisations are suffering today, other industries will follow. Road builders and leather manufacturers are just two examples that spring to mind.

I was recently updated about the continuing economic sabotage faced by companies in the agricultural biotechnology industry. The Government require full testing of genetically modified crops, yet with the difficulties in providing continuous security there seem to be few means of protecting their destruction by activists. Furthermore, companies and their staff have been targeted by means of the same tactics as those employed by animal rights groups. I was told that links have been uncovered between the targeting of the GM and the animal research industries by the same people. By limiting their new clause to animal research, the Government have failed to appreciate the pressing issues arising in other areas.

However, the introduction of new legislation by the Government is a positive step, and we will support the economic damage provisions. Accordingly, I shall not press our alternative new clause 5 to a Division, although in recognition of the lack of consultation and the drafting amendments required to new clause 11, I shall press amendment (b) to that new clause, keeping in mind the need for the other place to consult on those provisions during the passage of the Bill.

Finally, new laws are far from the whole answer. A much wider range of tactics must be adopted if we are to become more effective at dealing with the threats from economic extremists. A code for protesters similar to the existing picketing code could allow for legitimate protest, while freeing police and court resources. Judges and the police should have best practice guidance to ensure that there is a consistent approach to arrest, conviction and sentencing, not least in relation to new clauses 10 and 11. Two terrorists were jailed after orchestrating a campaign of thousands of telephone calls to research companies to block their lines. Imagine the industry's horror when those criminals' sentences were recently slashed on appeal.

Police forces must have adequate funding and training to make use of existing legislation, and any new measures that make it on to the statute book will need to be properly funded. Overstretched local Crown Prosecution Service lawyers can be left vulnerable in the face of experienced lawyers acting, often pro bono, on behalf of accused protesters. Almost a year ago the Government promised a team of specialist central prosecutors to deal with this issue. Where are they? I do not see them. We do not believe that the national extremism tactical co-ordination unit receives nearly enough resources to allow it to deal with such matters effectively. I do not want to state in public the number of people involved with the unit or the time that they spend on their work, but the Minister knows what those numbers are and how inadequate the situation is. All these examples are aspects that must be addressed. The actions of a tiny minority must not be allowed to continue to blight the lives of individuals and the workings of companies. Leadership and further action from the Government are called for without delay.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs) 7:45 pm, 7th February 2005

I welcome the Government's engagement with the issue. We have made progress, and careful consideration has been given to points made in Committee by my hon. Friend Dr. Harris and myself, among others. We all want to ensure that the law is adequate to provide protection for people going about their proper business. At the same time we want to ensure that the proper ability to protest is not curtailed. There is a world of difference between somebody who is protesting in a proper way about something that they feel strongly about, and somebody who is engaged in criminal activity in order to intimidate others into doing things that they would not otherwise do.

We welcome the provisions of the new clauses, but because they were not tabled in Committee—this is not a criticism—we must now ask some of the questions that we would otherwise have asked at an earlier stage. I want some small clarifications of the drafting. That will be relevant when the matter is discussed in another place, where I am sure it will be examined more carefully.

In new clause 10(1) there is a slightly novel approach in the reference to an act or threat that is

"intended or likely to cause a second person (B) to take any of the steps in subsection (2)."

The mens rea is deferred, so to speak. Somebody has committed what is considered to be a criminal offence or a tortious act, but they may not have the intention ascribed to the initiator, nor may the person who initiated the act, in the case of another person. There is a slight legal quandary there which needs further explanation and exploration.

I queried the difference in subsection (3)(a) and (b) between

"an act amounting to a criminal offence" and

"a tortious act", which is not described as an act amounting to a tortious act. We have not received an answer to that, but we will get one in due course.

I am worried about the rather wide definition of a tortious act and what is included in it. When the Minister was trying to explain, she mentioned a serious libel—in fact I think it was a criminal libel, but I am not enough of a lawyer to remember which categories constitute criminal libel. I thought that accusing someone of an indictable offence was one of those categories. Clearly, the provision will catch simple defamation. Perhaps the hon. Lady will confirm that. My hon. Friend the Member for Oxford, West and Abingdon made the point that tort could include simple trespass, which would be unlikely to cause significant loss or damage. Hence our probing amendment to establish what otherwise was intended to fall into that category.

Subsection (5)(b) contains a very wide definition:

"to prevent or hinder the carrying out by the organisation of any of its activities."

I want the measure to be an effective tool to fight a particular abuse. I do not want it to be infinitely extendable to inappropriate purposes. Preventing or hindering the carrying out of any activity is an extremely wide provision, and I expect those in another place to examine it closely.

I shall close now because, sadly, we are running out of time, as has been the case during all our debates today, which I regret. Mr. Djanogly said that he would press his amendment (b) to new clause 11 to a Division. My understanding is that he intends to ensure that it is an offence under new clause 11 for a tortious act to be committed—in other words, one of the two categories, but not that which amounts to a criminal offence, because it clearly is a criminal offence by definition—rather than threatened. Will the Minister explain whether she believes that that is covered elsewhere, and if so, how? Otherwise, I shall support the hon. Gentleman's amendment.

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Home Office) 8:00 pm, 7th February 2005

We have had a useful debate exploring the nature of people engaged in acts against those working directly for animal research organisations and those associated with them. There is common agreement that we have got to the point where we have to do something about that issue.

I remind the House that during the past year there has been a step change in how the police, the prosecution services and others have been working together to deal with one of the points raised by Mr. Djanogly, which is that we can have the laws, but we also have to have enforcement. When we are dealing with people who come in the dead of night to vandalise other people's property and throw acid on their cars, trying to build the evidence base to bring successful prosecutions to court is not easy. It has been particularly difficult when they have taken action against people in supply companies in different parts of the country.

We have made huge progress in this area with the establishment of the national extremist tactical unit in Cambridge, which is not considering the issue piecemeal, but is connecting the intelligence from a variety of activities and actions involving those people throughout the country. That is why we are starting to see better use of court time to prosecute. There has also been the use of antisocial behaviour orders by communities to see what justice they can get. Let us not forget that other measures were agreed in Committee to tackle harassment and protests outside people's homes, which should be seen as part of the package. I wanted to say that because I did not think it was right to let it pass, considering some of the comments about inactivity.

I shall try to deal with some of the points that have been made. In the short time I have, I shall probably not do them justice, but I am sure the issue will come back in another place. I am happy to continue to discuss matters with Opposition spokespeople afterwards as well. I was asked whether building contractors working for animal research organisations would be caught, and the answer is yes. The issue was raised as to whether new clause 11 covers unlawful acts or only threats of them. The proposal is specifically aimed at tackling intimidation, but we shall further consider the points made this evening to ensure that we have got that right.

I was also asked what the term "person" covers. It refers to any person who can be identified in law, including companies, other corporate bodies and unincorporated associations. It should be remembered that some crimes and torts can be committed only by real people.

A question was raised as to whether the Government intend to catch all tortious acts. The answer is no, only tortious acts that cause loss or damage. As was mentioned, some torts such as trespass may or may not result in loss or damage. We have tried to confine what can be a broad area of actions in terms of law.

The term,

"a person with a financial interest", which appears in new clause 11, means anyone with a financial interest, including an owner, a shareholder, a bond holder and so on. I hope that clarifies the matter.

Mr. Heath asked about the wording of new clause 10, which refers to

"an act amounting to a criminal offence".

The words have been chosen to make the language precise, because the provisions refer to "a relevant act"; we wanted to give some more detail on that. The definition is of a relevant act, so both subsections 3(a) and 3(b) refer to an act that amounts to a criminal offence and a tortious act. There is nothing unusual in that wording, which is intended to make the clause more precise.

The hon. Gentleman also asked whether "tortious act" catches defamation. It does, provided that loss or damage has been caused. That is the key issue. He asked another question on the same point: what amounts to a criminal offence? It means doing something in circumstances that make it a criminal offence—

It being three and a half hours after the commencement of proceedings, Madam Deputy Speaker put forthwith the Question already proposed from the Chair, pursuant to Order [3 February].

Question agreed to.

Clause read a Second time, and added to the Bill.

New Clause 11

Intimidation of persons connected with animal research organisation

'(1) A person (A) commits an offence if, with the intention of causing a second person (B) to abstain from doing something which B is entitled to do (or to do something which B is entitled to abstain from doing)—

(a) A threatens B that A or somebody else will do a relevant act, and

(b) A does so wholly or mainly because B is a person falling within subsection (2).

(2) A person falls within this subsection if he is—

(a) an employee or officer of an animal research organisation;

(b) a student at an educational establishment that is an animal research organisation;

(c) a lessor or licensor of any premises occupied by an animal research organisation;

(d) a person with a financial interest in an animal research organisation;

(e) a customer or supplier of an animal research organisation;

(f) a person who is contemplating becoming someone within paragraph (c), (d) or (e);

(g) a person who is, or is contemplating becoming, a customer or supplier of someone within paragraph (c), (d), (e) or (f);

(h) an employee or officer of someone within paragraph (c), (d), (e), (f) or (g);

(i) a person with a financial interest in someone within paragraph (c), (d), (e), (f) or (g);

(j) a spouse, civil partner, friend or relative of, or a person who is known personally to, someone within any of paragraphs (a) to (i);

(k) a person who is, or is contemplating becoming, a customer or supplier of someone within paragraph (a), (b), (h), (i) or (j); or

(l) an employer of someone within paragraph (j).

(3) For the purposes of this section an "officer" of an animal research organisation or a person includes—

(a) where the organisation or person is a body corporate, a director, manager or secretary;

(b) where the organisation or person is a charity, a charity trustee (within the meaning of the Charities Act 1993);

(c) where the organisation or person is a partnership, a partner.

(4) For the purposes of this section—

(a) a person is a customer or supplier of another person if he purchases goods, services or facilities from, or (as the case may be) supplies goods, services or facilities to, that other; and

(b) "supplier" includes a person who supplies services in pursuance of any enactment that requires or authorises such services to be provided.

(5) For the purposes of this section, a "relevant act" is—

(a) an act amounting to a criminal offence, or

(b) a tortious act causing B or another person to suffer loss or damage of any description.

(6) The Secretary of State may by order amend this section so as to include within subsection (2) any description of persons framed by reference to their connection with—

(a) an animal research organisation, or

(b) any description of persons for the time being mentioned in that subsection.

(7) This section does not apply to any act done wholly or mainly in contemplation or furtherance of a trade dispute.

(8) In subsection (7) "trade dispute" has the meaning given by section (Interference with contractual relations so as to harm animal research organisation).'.—[Caroline Flint.]

Brought up, and read the First and Second time.

Amendment proposed to the proposed new clause: (b), in line 4, after "act", insert

"or A or someone at the instigation of A does a relevant act,".—[Mr. Djanogly.]

Question put, That the amendment be made:—

The House divided: Ayes 95, Noes 313.

Division number 72 Orders of the Day — Serious Organised Crime and Police Bill — [1st Allotted Day] — New Clause 6 — Interception of communications

Aye: 95 MPs

No: 313 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Question accordingly negatived.

Clause added to the Bill.

New Clause 12

Penalty for offences under sections (Interference with contractual relations so as to harm animal research organisation) and (Intimidation of persons connected with animal research organisation)

'(1) A person guilty of an offence under section (Interference with contractual relations so as to harm animal research organisation) or (Intimidation of persons connected with animal research organisation) is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum, or to both;

(b) on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine, or to both.

(2) No proceedings for an offence under either of those sections may be instituted except by or with the consent of the Director of Public Prosecutions.'.—[Caroline Flint.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 13

Animal research organisations

'(1) For the purposes of sections (Interference with contractual relations so as to harm animal research organisation) and (Intimidation of persons connected with animal research organisation) "animal research organisation" means any person or organisation falling within subsection (2) or (3).

(2) A person or organisation falls within this subsection if he or it is the owner, lessee or licensee of premises constituting or including—

(a) a place specified in a licence granted under section 4 or 5 of the 1986 Act,

(b) a scientific procedure establishment designated under section 6 of that Act, or

(c) a breeding or supplying establishment designated under section 7 of that Act.

(3) A person or organisation falls within this subsection if he or it employs, or engages under a contract for services, any of the following in his capacity as such—

(a) the holder of a personal licence granted under section 4 of the 1986 Act,

(b) the holder of a project licence granted under section 5 of that Act,

(c) a person specified under section 6(5) of that Act, or

(d) a person specified under section 7(5) of that Act.

(4) The Secretary of State may by order amend this section so as to include a reference to any description of persons whom he considers to be involved in, or to have a direct connection with persons who are involved in, the application of regulated procedures.

(5) In this section—

"the 1986 Act" means the Animals (Scientific Procedures) Act 1986 (c. 14);

"organisation" includes any institution, trust, undertaking or association of persons;

"premises" includes any place within the meaning of the 1986 Act;

"regulated procedures" has the meaning given by section 2 of the 1986 Act.'. .—[Caroline Flint.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 14

Extension of sections (Interference with contractual relations so as to harm animal research organisation) and (Intimidation of persons connected with animal research organisation)

'(1) The Secretary of State may by order provide for sections (Interference with contractual relations so as to harm animal research organisation), (Intimidation of persons connected with animal research organisation) and (Penalty for offences under sections (Interference with contractual relations so as to harm animal research organisation) and (Intimidation of persons connected with animal research organisation)) to apply in relation to persons or organisations of a description specified in the order as they apply in relation to animal research organisations.

(2) The Secretary of State may, however, only make an order under this section if satisfied that a series of acts has taken place and—

(a) that those acts were directed at persons or organisations of the description specified in the order or at persons having a connection with them, and

(b) that, if those persons or organisations had been animal research organisations, those acts would have constituted offences under section (Interference with contractual relations so as to harm animal research organisation) or (Intimidation of persons connected with animal research organisation).

(3) In this section "organisation" and "animal research organisation" have the same meanings as in section (Animal research organisations).'. .—[Caroline Flint.]

Brought up, read the First and Second time, and added to the Bill.

Clause 154

Orders and regulations

Amendment made: No. 99, in page 119, line 1, at end insert—

'( ) any order under section (Intimidation of persons connected with animal research organisation)(6), (Animal research organisations)(4) or (Extension of sections (Interference with contractual relations so as to harm animal research organisation) and (Intimidation of persons connected with animal research organisation);'.—[Caroline Flint.]

Clause 157

Penalties for offences: transitional modification for England and Wales

Amendment made: No. 100, in page 120, line 14, at end insert—

'( ) section (Penalty for offences under sections (Interference with contractual relations so as to harm animal research organisation) and (Intimidation of persons connected with animal research organisation))(1)(a).'.—[Caroline Flint.]

Title

Amendment made: No. 110, in title, line 9, after 'police;', insert

'to make provision for protecting certain organisations from interference with their activities;'. —[Caroline Flint.]

New Clause 7

Police members of SOCA to have powers of constable etc.

'(1) A police member of SOCA—

(a) shall have the powers of a constable;

(b) subject to subsection (2) below, may have the customs powers of an officer of Revenue and Customs;

(c) subject to subsection (3) below, may have the immigration powers of an immigration officer.

(2) A police member of SOCA may exercise the customs powers of an officer of Revenue and Customs only if he has previously exercised those powers or has received such training as would otherwise entitle him to exercise those powers.

(3) A police member of SOCA may exercise the immigration powers of an immigration officer only if he has previously exercised those powers or has received such training as would otherwise entitle him to exercise those powers.

(4) In this section "police member" means a police member of SOCA appointed in accordance with paragraph 13A of Schedule 1.'.—[Mr. Mitchell.]

Brought up, and read the First time.

Photo of Andrew Mitchell Andrew Mitchell Shadow Minister (Home Affairs)

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

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

With this we may take the following: Amendment No. 37, in page 23, line 19, leave out clauses 41 to 43.

Government amendment No. 67.

Amendment No. 111, in clause 41, page 24, line 1, leave out

'to be treated as suspended' and insert 'maintained'.

Amendment No. 112, page 24, line 2, leave out

'revives if (and only if)' and insert 'if'.

Government amendment No. 68.

Amendment No. 15, in clause 44, page 24, line 26, leave out from 'a' to end of line 27 and insert 'police member of SOCA'.

Amendment No. 16, page 24, line 28, leave out 'The designated person' and insert 'A police member'.

Amendment No. 17, page 24, line 29, leave out 'the designated person' and insert 'a police member'.

Amendment No. 18, page 24, line 36, leave out 'the designated person' and insert 'a police member'.

Amendment No. 19, page 24, line 39, leave out 'the designated person' and insert 'a police member'.

Amendment No. 20, page 24, line 40, leave out 'The designated person' and insert 'A police member'.

Amendment No. 21, page 25, line 3, leave out 'the designated person' and insert 'a police member'.

Amendment No. 22, page 25, line 5, leave out subsection (8).

Amendment No. 23, in clause 45, page 25, line 11, leave out 'persons designated' and insert 'police members'.

Amendment No. 24, in clause 49, page 27, line 26, leave out 'designated person' and insert 'police member'.

Amendment No. 25, page 27, line 27, leave out 'designated person' and insert 'police member'.

Amendment No. 26, page 27, line 30, leave out 'designated person' and insert 'police member'.

Amendment No. 27, page 27, line 31, leave out 'designated person' and insert 'police member'.

Amendment No. 28, page 27, line 34, leave out 'designated person' and insert 'police member'.

Amendment No. 29, page 27, line 36, leave out 'designated person' and insert 'police member'.

Amendment No. 30, page 27, line 38, leave out 'designated person' and insert 'police member'.

Amendment No. 31, page 28, line 7, leave out 'designated person' and insert 'police member'.

Amendment No. 32, page 28, line 8, leave out 'virtue of the designation' and insert

'reason of holding the powers'.

Amendment No. 33, in clause 50, page 28, line 22, leave out 'designated persons' and insert 'police members'.

Amendment No. 34, page 28, line 33, leave out 'designated persons' and insert 'police members'.

Amendment No. 35, in clause 52, page 29, leave out lines 21 and 22.

Amendment No. 36, page 29, line 25, leave out subsection (2).

Amendment No. 13, in schedule 1, page 126, line 28, after '9)', insert—

'(aa) such persons appointed by SOCA under this paragraph as police members of SOCA,'.

Amendment No. 14, page 126, line 36, after first 'SOCA', insert

'or police members of SOCA'.

Amendment No. 38, page 128, line 33, at end insert—

'Police members of SOCA

13A A person may be appointed as a police member of SOCA if he is attested or sworn as a constable and—

(i) he is a member of a police force maintained under section 2 of the Police Act 1996;

(ii) he is a member of the Metropolitan Police Force or City of London Police Force;

(iii) he is a regular constable within the meaning of the Police (Scotland) Act 1967;

(iv) he is a member of the Police Service of Northern Ireland;

(v) he is a member of the Ministry of Defence Police appointed on the nomination of the Secretary of State under section 1 of the Ministry of Defence Police Act 1987;

(vi) he is a member of the British Transport Police Force;

(vii) he is a member of the States of Jersey Police Force;

(viii) he is a member of the salaried Police Force of the Island of Guernsey; or

(ix) he is a member of the Isle of Man Constabulary.

13B(1) Subject to the provisions of this paragraph, the Secretary of State may make regulations as to the government and administration of SOCA and conditions of service within SOCA.

(2) Without prejudice to the generality of sub-paragraph (1), regulations under this paragraph may make provision with respect to—

(a) the ranks to be held by police members of SOCA;

(b) the promotion of police members of SOCA;

(c) voluntary retirement of the police members of SOCA;

(d) the efficiency and effectiveness of police members of SOCA;

(e) the suspension of police members of SOCA from membership of it and from their office as constables;

(f) the maintenance of personal records as members of SOCA;

(g) the duties which are or are not to be performed by the police members of SOCA;

(h) the treatment of occasions of police duty of attendance at meetings of the Police Federations and of anybody recognised by the Secretary of State for the purposes of sections 64 of the Police Act 1996;

(i) the hours of duty, leave, pay and allowances of police members of SOCA; and

(j) the issue, use and return of

(i) personal equipment and accoutrements; and

(ii) police clothing.

(3) Regulations under this paragraph for regulating pay and allowances may be made retrospective to any date specified in the Regulations, but nothing in this sub-paragraph shall be construed as authorising the pay or allowances payable to any person to be reduced retrospectively.

(4) SOCA may—

(a) pay, or make payments in respect of pensions or gratuities to or in respect of any persons who are or have been police members;

(b) provide and maintain schemes (whether contributory or not) for the payment of pensions or gratuities to or in respect of any such persons.

(5) Before exercising its powers under sub-paragraph (4), SOCA shall have regard to any provision made under the Pensions Act 1976.'.

Photo of Andrew Mitchell Andrew Mitchell Shadow Minister (Home Affairs)

The purpose of the amendments is to create a category of front-line officers of SOCA, classed as police members. Under our new clause and amendments, police members would have the powers that police officers, Revenue officers, Customs officers and immigration officers currently exercise. The amendments would remove the confusion that the mix-and-match designations of part 1, chapter 2 anticipate.

The amendments revert to issues that my hon. Friends and I raised in Standing Committee on 11 January. We listened carefully to the Under-Secretary's response to those amendments. We took her comments into account and our amendments are now a little different from those that we tabled previously. We were encouraged when she told us on Second Reading and in Committee that she would consider drafting amendments on training.

Some of the Under-Secretary's comments in Committee seemed to us to arise from a misapprehension about the intent and effect of our amendments, and I therefore wish to deal with that misconception at the outset. I believe that the Under-Secretary may have understood our amendments to have the effect that all SOCA staff would have to be police constables. That was a misunderstanding on her part.

SOCA will have many members of staff, including accountants, forensic scientists and staff who have come from the Crown Prosecution Service. Some staff will come from Customs. Others might come from the Financial Services Authority. No doubt there will be lawyers—probably many lawyers. There will be support staff—secretaries, chiefs of staff and so on. Nobody in their right mind would suggest that they should all be required to hold the post of constable.

The debate deals with front-line staff. By that I mean those who will exercise powers of entry, investigation, seizure and arrest. The thrust of our amendments is that those front-line staff should hold the office of constable. We do not mean the tea boy, the backroom staff or the lawyers, but those who exercise police powers. They should be constables.

Lying behind those amendments are some points of fundamental difference between us and the Government. The Under-Secretary said in Committee:

"SOCA will not be a police force and, consequently, should not be staffed by police officers."

She also said:

"I strongly refute the argument that only police officers can be entrusted with police powers."—[Official Report, Standing Committee D, 11 January 2005; c. 38, 37.]

We disagree with both assertions.

Let me deal with two crucial matters that need to be understood and fully appreciated before our amendments can be considered. The first is the historical significance and importance of the office of constable. The second is an understanding of the way in which the Bill, as presented, proposes to give what might broadly be described as "police powers" to SOCA staff.

Although today's police forces are the creation of statute and the police have numerous statutory powers and duties, from a legal point of view, a police force is essentially neither more nor less than several individual constables, whose status derives from the common law. The office of constable dates back to the parish constable, who, by the beginning of the 17th century, was responsible for the preservation of the peace in his bailiwick and for the execution of the orders and warrants of the justices of the peace. The constable's oath and close relationship with the justices of the peace characterised him as a ministerial officer of the Crown, like a sheriff or the JPs themselves, rather than as a local administrative officer. In short, constables have never been civil servants.

Various enactments were passed in the 19th and 20th centuries, providing for the establishment of police forces. Powers were not conferred on members of police forces as such, but a member of a police force on appointment had to be attested as a constable by making a declaration. A member of a police force now has all the powers and privileges of a constable throughout England and Wales.

The hallmark of the present day constable therefore remains, as it was in the 17th century, his attestation. Until so attested, constables have neither the authority nor the status of a constable. Once attested, the constable holds that office. That applies equally to members of police forces, special constables, and, of special note, the director general and police members of the National Crime Intelligence Service and the National Crime Squad.

I draw attention to the fact that, when Parliament created NCIS and the NCS, it wisely saw fit to maintain the significance of the office of constable by creating a category of police members of those organisations. The Bill will abolish NCIS and the NCS and absorb those organisations into SOCA. What, then, is the precise status of a police constable?

When carrying out his duties as a constable, a member of a police force—of whatever rank—acts as an officer of the Crown and a public servant. Constables' powers are exercised by virtue of their office, and unless they are executing a warrant, the powers can be exercised only on their own responsibility. A police constable who deliberately fails to carry out his duties by wilfully omitting to take steps to preserve the Queen's peace or to protect a person under attack commits a criminal offence—the common law offence of misconduct of an officer of justice.

The Crown is not liable for the wrongful acts of a member of a police force. Although a constable is an officer of the Crown and a public servant, his or her relationship with the Crown is not that of master and servant, nor that of principal and agent. He or she is a servant of the Crown only in the sense that any holder of a public office may be called a servant of the Crown or the state.

Why does that matter in 2005? The answer is that it has important consequences for the nature of policing and the independence of our police force. Police officers cannot be dismissed on notice; they cannot take industrial action; they have a duty to act and report both on and off duty; and they are completely politically impartial. Those have all been characteristics of our police for at least the past 175 years. They derive from the office of constable. That is of great importance to the nature of policing in Britain.

Many years ago, it was simple to become a constable. All one had to do was go before a magistrate and take an oath. Today, however, those who exercise police powers undergo extensive training. On being recruited to a police force, constables are appointed on a two-year probationary period. It allows a mix of intensive training at residential centres and training on the beat with a tutor constable. Every new recruit goes through exactly the same basic training programme, which lasts 15 weeks at a national police training centre, followed by further training on the job. Recruits are then on probation for two years before they become fully fledged police officers.

Training is in four stages. Recruits spend two weeks at their local force training centre familiarising themselves with police procedures and with the law. They then receive their uniform and make an official declaration as a police constable before a local magistrate. There then follows a 15-week intensive residential course, with continuous assessment and exams, strenuous physical activity, self-defence training and teaching of the law. Trainees are taught how to understand the criminal mind, and how to treat people fairly; that is all part of the course. After this, they return to their home force and are allocated an experienced tutor constable who guides them through the routines of police work. Trainees are then considered suitable for independent control, and progress to more advanced training. After two years' probation, they are required to attend further training locally before being appointed to the rank of constable.

Is that training appropriate? We think that it is. Is it necessary? We think so. However, the Minister seems to think that it is unnecessary. The Bill, as it stands, will allow the director general of SOCA to confer police powers on someone who is not a constable, and who has had none of the training that I have just described. Hon. Members might find that scarcely credible.

Let me turn to my second point. How does the Bill propose to grant SOCA staff police and other powers? Once we understand the present proposals for equipping SOCA staff with police powers, we immediately see that the Bill will create a deeply unsatisfactory regime, and that a radical rethink is clearly required.

Clause 41 gives the director general the power to designate a member of staff as a person with the powers of a constable, a customs officer or an immigration officer. Who can be designated in such a way? A safeguard that the person should already have been trained and be qualified to exercise those powers would provide at least some comfort. However, the clause expressly provides that any member of SOCA's staff can be given any, or all, of those powers, whether or not he is already qualified to exercise them. That will be rather like a sheriff in the wild west riding into town and shelling out badges willy-nilly to the locals, regardless of their training.

Let us look more closely at the process of designating a member of the staff of SOCA as a person having the powers of a constable. In the case of a designated constable, there is no requirement for this second-class constable to take an oath of attestation. He will have the powers of the constable, but not, it seems, their duties and responsibilities. The effect of clause 41(5) will be that, if an employee of SOCA was a constable before he became designated by the director general, his tenure of the office of constable will be suspended. So these second-class constables would be able, it seems, to take industrial action, just as customs and immigration officers can do at present.

It might appear from clause 44 that a designation as constable brings with it all the powers and privileges of that office, but that is not so. In fact, the designation made by the director general can be made subject to limitations as to the powers exercisable, or as to the purposes for which the powers are exercised. So there will be second-class constables with second-class powers. As I said in Committee, lawyers will have a field day trying to work out whether, in any particular case, the powers exercised by a constable designate were within his authorisation or were exercised for an authorised purpose. This will certainly not help to combat serious or organised crime. Worse still, persons can be designated as constables for a fixed period under clause 41(2)(b), and the designation, even if originally given without a time limit, can always be withdrawn.

The Police Federation reports that a straw poll of NCS officers shows that an overwhelming 95 per cent. of serving NCS officers stated that they were unwilling to transfer to SOCA. That is hardly surprising. Quite apart from the wholly unsatisfactory nature of the arrangements, from the point of view of those unfortunate enough to be designated as temporary, second-class, limited-power constables, what is the position for those over whom these constables designate seek to exercise their powers? When someone is challenged by a police officer, they are surely entitled to know what the powers of that constable are. Improper exercise of police powers is rare, and the fact that anyone can discover, if they wish to, what powers a police officer has, by virtue of his or her office, is a useful way of maintaining that state of affairs.

What will be the position if someone is challenged by a constable designate? How are they to know whether the designation is still in force, and more importantly, how are they to know whether the powers that the constable designate seeks to exercise have in fact been granted to him? Should constables designate carry round with them a list of the powers that the director general has decided to grant them, together with a list of those that they have not been granted? Of course, they will also need to demonstrate not only that they have the powers, but that they are exercising them for one of the purposes for which they have been authorised. There must be a better way to equip front-line SOCA staff with the powers that they will need.

I have explained, by way of background, what it means to be a police constable, and described the proposals in the Bill for creating pale imitations to deal with serious and organised crime. Having also painted a picture of the risks inherent in the mix-and-match scheme proposed in clause 41(2), I shall now turn to our amendments. Instead of the second-class constables designate proposed in the Bill, we propose to create a single category of front-line SOCA staff, to be known as police members of SOCA. To become a police member of SOCA, a person must be a constable, and have the powers and duties of a constable.

So this is, in a sense, an all-or-nothing situation. It is simple. In Committee, the Minister said that that was a disadvantage in our proposals, and that SOCA needed flexibility. To an extent, that is right. That is why we no longer propose that all SOCA police members should have all the rights of police officers, customs officers and immigration officers. However, we do not agree that it is sensible to create half-baked policemen and women, especially for SOCA. That might indeed be flexible, but it would be most unwise.

First, such a move would lead to a bureaucratic nightmare in which everyone had a different suite of mix-and-match powers, limited as to time and purpose, and constrained as to extent. Secondly, it would lead to a defence lawyers' field day. When the bust took place, they would ask, who exactly exercised which powers? Were the relevant individuals properly authorised? Who exactly seized which evidence? Which specific powers did that person have?

Thirdly, such a measure would massively overcomplicate the training requirements. It is surely much simpler to say that, if a person is to exercise police powers, they must have had police training. As has been said, that training programme is well established. It is tried and tested, and has proved to provide a coherent approach to the training that is necessary before the powers of a constable can be exercised. Let me make the same point in another way. Our proposal avoids the need for SOCA to reinvent the wheel in terms of police training. We agree that there should be provision for front-line SOCA officers to be able to exercise customs or immigration-officer powers and we propose to enable such powers to be added to the armoury of police members of SOCA.

The powers of customs and immigration officers are not as extensive as the powers of a police officer, and that is reflected in the training requirements. Immigration officers receive five weeks' training in the case of passport control officers and eight weeks' training in the case of immigration enforcement officers. All entrants then serve a probationary period of one year. Customs officers have a structured, in-house, six-week pre-entry training programme that combines on-the-job training with residential courses. Following a six-week period, they are placed with a mentor for the first month of the job.

Under our proposals, a police member of SOCA may exercise the powers of an immigration officer or customs officer, but that is subject to a proviso. The proviso is, in either case, that the person has exercised those powers before or has undergone such training as would otherwise entitle him to exercise them. The advantage is, again, that it avoids the need to reinvent the wheel in terms of devising appropriate training.

Let me say something about our core proposals. Amendment No. 38 aims to provide a new definition of "police members of SOCA". I repeat that it refers to front-line staff. These men and women should be constables. There are other consequential amendments, but the gist is in that one. Under new clause 7, a police member of SOCA will have the powers of a constable. To those powers may be added the powers of a customs officer or immigration officer, provided that the person concerned has been appropriately trained or has exercised the powers before.

Let me try to put these important proposals in context. The whole purpose of SOCA, as we understand it, is to strengthen the powers available for the prevention and detection of serious organised crime. Essentially, those are policing functions, and the last thing that is required is for the SOCA front line to be staffed by second-rate policemen and policewomen. It seems to us that all front-line SOCA staff who exercise powers of investigation and arrest, and who exercise warrants and so on, ought to have the full range of powers of a police constable and be subject to the same duties. Our new clause and amendments allow those powers to be bolstered by the addition of powers that can be exercised by customs and by immigration powers, but they build in the necessary safeguards involving training or prior experience of exercising those powers.

Our proposals have the great merit of simplicity. The Government's proposals are too complex, and will lead to confusion. They will require the director general of SOCA to devise a complex bureaucracy for handing out and monitoring mix-and-match powers. They will require him to devise a series of training schemes. They will require him to start from scratch rather than building on available structures and experience. The Government say that that has the merit of flexibility; we think that a fairer description of their proposals is "a recipe for confusion".

Bold action is needed if SOCA is to have a realistic prospect of achieving its aims. Serious and organised crime calls for investigation and prevention by officers with serious and properly organised powers, and our new clause and amendments achieve that.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs) 8:30 pm, 7th February 2005

I do not want to spend too much time on the detail of my amendments. I want to deal with the wider issue of the office of constable, as Mr. Mitchell has done. First, however, let me record my appreciation of Government amendment No. 67, which strengthens the provisions by making it absolutely clear that a person designated under clause 41 must have not just the appropriate background and expertise but the necessary training.

In Committee, one of the matters that concerned me was the application of the agency to Scotland. Officers designated to work there would work under an entirely different jurisdiction and legal system. They would have to develop very different relationships with, for instance, the procurator fiscal. They would have to understand how the system worked, and to understand that the provisions were different from those in the Police and Criminal Evidence Act 1984. I am satisfied that the Government have at least gone some way towards satisfying my concerns in that area.

If one is not careful, it is quite easy to slip into pomposity when talking about the office of constable but it is an important issue that matters to the men and women who serve in our police forces. I have never had any doubts about that in my fairly long connection with the police service. People who are sworn in as constables recognise that that is an important, significant and historic role that carries with it not only duties and responsibilities, but protections, which are not to be lightly ignored, including protection from undue influence. They are not civil servants. They are not at the beck and call of a Minister of the Crown. They are officers of the Crown in their own right, capable of making their own decisions and not to be persuaded inappropriately against their instincts to take a wrong action.

Our police officers are extremely concerned about the Government's attitude to the definition of what constitutes a constable and an officer of the Crown. It seems to them that a top-level agency is to deal with high-level crime without anyone in it who is a constable, other than under temporary designation. They look at the role of community support officers. I support such officers, but I have concerns, which are shared widely, that a creep in their powers and responsibilities will take them more and more into normal municipal policing for many areas, and that that will not only prevent them from doing the job that they were originally intended to do but reduce the scope for police constables.

Provisions later in the Bill, which I suspect we may not have an opportunity to debate later, deal with the removal of the custody sergeant, a key element in the Police and Criminal Evidence Act, a key protection not only for the police officer but for the public and for those who are arrested. Police officers see that role being passed over to civilian officers, which is not, I understand, a particularly popular move. This week, the new Metropolitan Police Commissioner, Sir Ian Blair, told Police Review that he was

"waiting to be given a very persuasive argument" over the switch

"and at the moment I have not heard one".

That is a fairly damning assessment. A similar view was expressed by West Yorkshire police, so there are doubts even at senior levels about that change. The Government's proposals have yet to allay those concerns.

Most of all, the police fear that the important role that has been assigned to them as constables is being squeezed from below and above until, if we are not careful, we will have a police service that is a gendarmerie dealing with disturbance at a major level, but not with major crime, petty misdemeanours, low-level crime, or antisocial behaviour. That is not a future that they look at with any equanimity. They are concerned that the proposals do not recognise the important role that they play.

The main thrust of the Minister's argument in Committee—I hope that I am not unfairly summarising—was that SOCA is a brand new entity, it incorporates elements from different strands of interdiction and that, therefore, it would not be appropriate for it to be a police agency, any more than it would be appropriate for it to be a Customs agency or a security service agency. In Committee on 11 January the Minister said:

"SOCA's staff will be every bit as professional and independent as police officers, but I strongly refute the argument that only police officers can be entrusted with police powers. We have long since moved away from such a position."—[Official Report, Standing Committee D, 11 January 2005; c. 37.]

That is the concern in a nutshell of police officers—that it is the Government's view that police powers can be operated by a wide range of individuals who need not be police constables. That begs the question why we have the sworn constable any more.

I want to make it absolutely plain—again, we do not have long to debate this serious issue—that I stand four square behind the office of constable, which has served us well. It has ensured that our police service has been able to resist the blandishments of politicians or the baying of the mob, and that is right and proper. Whatever the Government say, SOCA is effectively a policing agency. It will be dealing with serious crime, it will have police officers in its ranks, it will be inspected by Her Majesty's chief inspector of constabulary, and I see no reason to divorce it from its predecessors. The National Criminal Intelligence Service, with which I had a long connection, was a hybrid organisation that successfully melded the constables within its ranks with members of other professions and none who served effectively within that organisation. I see no argument that suggests that that could not work equally well, as the hon. Member for Sutton Coldfield says in the new clause, in the new organisation.

Therefore, I shall support new clause 7 and recommend my right hon. and hon. Friends to do so too, but most of all I shall be supporting the principle that policing in this country is not a matter for paid officials of the Government, but for officers of the Crown, sworn constables, and that is something that we lose at our peril.

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Home Office) 8:45 pm, 7th February 2005

The creation of SOCA has not happened overnight; it was the result of considerable consultation, not least the White Paper produced last year, but also of considerable discussion before that between SOCA's constituent parts—the National Crime Squad, NCIS, the drug investigation side of Customs and Excise and the immigration crime side of the Home Office. For a number of years now, as we discussed in Committee, there has been a recognition that in dealing with serious organised crime, whether in terms of drugs or immigration, there have been closer working relationships between people in those four organisations.

In many respects, the development of SOCA was a result of that closer working, and the recognition that, while there has been effective partnership—and full credit to all those involved—some convincing and positive prosecutions of criminals resulting in their being brought to justice, not enough positive progress was being made. It was also recognised that, in dealing with organised crime in the 21st century, the creation of the agency and the expanded powers in the Bill on Queen's evidence and disclosure powers, will give us greater strength to deal with the serious problems in this area, which may have an impact nationally and internationally, but which, at the end of the day, also have an impact regionally and locally in our communities on the streets.

Mr. Mitchell says that his new clause and amendments are different from those tabled in Committee or that I did not understand him in Committee, but his explanation today is largely consistent with what was said in Committee. In effect, he is still calling for a national police agency. Clearly he, like Mr. Heath, is inspired by a sincere wish to preserve the position of constables, which he somehow sees as under threat as a result of the creation of SOCA. I have made it clear and will say again that that is absolutely not the case. It is the case, however, that many of the people whom we have consulted in relation to creating SOCA have said that change is needed. For example, the Association of Chief Police Officers has said:

"The new agency requires flexible and effective skills in its staff. ACPO does not believe that they have to be police officers and strongly supports the approach detailed in the SOCA Bill for agency officers to be designated with powers aligned to their particular investigative needs."

I welcome the comments of the hon. Member for Somerton and Frome about my additional amendment to the Bill in relation to training. An important point was raised. In drawing people to apply for jobs in SOCA, it is important that the director general is able to be mindful of their experience, as they will include those who have worked for police forces up and down the country, those who have worked in Customs and Excise, and others who may have skills and expertise in IT and intelligence and who might need limited designation of powers to be an effective part of a team.

Much has been said this evening about the interference of politics in this area. In terms of the operational front line, this is all about making sure that the director general of SOCA is given powers that can be flexibly applied to people as he sees fit, while taking into account whether extensive training is necessary for those with previous experience. That is the situation, and it is a bone of contention between us and the Opposition.

SOCA will be a national law enforcement agency dedicated to fighting serious organised crime. Its staff will be highly regarded and respected in their own right as our excellent police forces currently are around the world. They are not in competition with those police forces, however. This is not about creating an elite of police officers, which we could accuse the hon. Member for Sutton Coldfield of wanting to do with his amendments.

Under the amendments, the police agency would be distorted by a view that those people best placed to serve it are police members, being individuals who were attested or sworn as constables or were members of police or special police forces. Were the amendments passed, those members of the agency who come in as customs officers and immigration officers would be seen as second-class. We do not want to be responsible for that. That would be a lost opportunity to bring together under one roof the operational experience and expertise of customs and immigration officers with that of the police agencies of the National Criminal Intelligence Service and the National Crime Squad, to create an agency that would be more than the sum of its parts.

No doubt the hon. Member for Sutton Coldfield will say, as he has pointed out, that the amendments provide that police members may exercise the powers of a customs or immigration officer together with those of a constable if they have the training or have held them before, even if, as I suspect, few will be in that last category. I am glad that, seemingly, we agree on one thing—that an individual can in principle have and exercise the powers of a constable, customs officer and immigration officer all at the same time. I am left wondering, however, why only a police member can potentially exercise the powers of all three, but not a customs or immigration officer, or even better, as we would have it, an employee of SOCA, free from his previous institution's baggage yet with all the experience and knowledge. The hon. Gentleman wants to have his cake and eat it on this issue, and he is fundamentally misunderstanding the aims of establishing SOCA and what we hope that it will achieve in the future.

I am almost left wondering whether the hon. Gentleman has thought of the impact of his amendments. I have already said that they would effectively create a super-police force. That would leave SOCA in, arguably, a worse position than the National Crime Squad, as under his approach, it has all the powers or none. Under the Police Reform Act 2002, however, the director general of NCS could designate staff as investigating officers with a limited array of police powers. Under his proposal, I suggest that that flexibility could be lost to SOCA. I have already mentioned the risk of creating an elitist culture and the potential for real or perceived inequality is obvious.

The Bill is not about SOCA creaming off the brightest and the best from local police forces. It is about creating a new organisation to tackle certain problems. New clause 7 takes the hon. Member for Sutton Coldfield to a place that he does not want to go.

The Bill enshrines the point that SOCA's staff will be every bit as professional and independent as police officers. I strongly refute the argument that only police officers can be entrusted with police powers, and we have moved away from that position.

I take the point raised by the hon. Member for Somerton and Frome that the perception that we do not value the role of the constable is a concern. We value that role, but we also recognise—as he acknowledged earlier—that other people, who may not have the full powers of a constable, can make a contribution to law enforcement.

All the people who participate in protecting our communities—customs officers, immigration officers, community support officers, prison officers and investigating officers—discharge their duties. We value the office of constable and sworn police officers, which have their place as part of the police service. I emphasise that SOCA will not be a police force and should therefore not be seen to be staffed by police members, but it will be staffed by men and women who are every bit as professional, highly trained, dedicated and impartial in their work.

I understand the hon. Gentleman's desire to ensure that the right people only have the powers of a constable and share his desire to ensure that the powers of constables, and indeed those of customs and immigration officer, are not distributed like confetti. Again, SOCA will take operational decisions on how it defines those people who should have different powers and on how it draws on the experience that people bring from different organisations.

I disagree with the hon. Gentleman that the director general of SOCA's carrying out of those functions will cause huge problems and that people who do not know their powers will cause huge legal problems down the line. In Committee, I said that it would be ridiculous for SOCA senior management to send people out on an investigation if those people were not aware of their powers and were therefore unable to bring successful prosecutions. It is ridiculous to suggest that that is a consequence of the Bill.

We have said that the delegation of those powers will be backed by training, a commitment underlined by Government amendment No. 67, which states that the director general must be satisfied that people have experience and training before he designates the relevant powers. The three conditions on the director general are listed in the Police Reform Act 2002 and concern the delegation of powers to police authority staff. Those conditions will apply, even if an individual has already held those powers, which will ensure that training is up to date.

Government amendment No. 68 ties up some loose ends. As the Bill stands, the director general can delegate his power to designate powers. In effect, Government amendment No. 67 imposes a function on the director general, and Government amendment No. 68 simply ensures that that function can be delegated as part and parcel of the power to delegate the power to designate.

I hope that that reassures the hon. Member for Sutton Coldfield—I am not sure whether it will—that SOCA does not have to be created as a national police organisation to preserve the powers of a constable. I hope that he will withdraw new clause 7 and that the House will accept the two Government amendments.

The amendments tabled by the hon. Members for Somerton and Frome and for Oxford, West and Abingdon (Dr. Harris) also appear to have been inspired by a wish to preserve the offices of those joining SOCA, including—it is notable that this is not exclusive, however—the office of constable. As I said in Committee, those police officers who wish to return to their police force after serving with SOCA will have had their position as constable suspended during that time. If someone wants to rejoin a police force, perhaps not even the one that they came from, that is one way in which their constable status could be revived.

We are not convinced by the Liberal Democrat amendments, which might cause confusion. They would work if the person were to return to the service as the holder of their previous office, which would be treated as having been maintained by that person during their time in SOCA, but we would be none the wiser about the state of a person's office if they did not return to the service as a holder of that office.

If the hon. Member for Somerton and Frome seeks simply to ensure that an office continues to be maintained while a person is an employee of SOCA, the amendments are unworkable. By virtue of their office while they were in SOCA, whether constable, immigration or customs, a person would be able to exercise the powers attached to that office. That would undermine any designations made by the director general on reasonable grounds in order to meet SOCA's operational priorities as the person would already start with that collection of powers, which he held by virtue of maintaining his existing office. The entire process of designation would be thrown into confusion. As has been said by the hon. Member for Sutton Coldfield, the powers of constable are extensive and it is not the wish of SOCA that someone should come in with all those powers and be designated as appropriate to the work that that individual would be undertaking within SOCA.

I will bring my remarks to an end. I have better manners than the hon. Member for Sutton Coldfield who gave me no time to respond on the issue of intercept as evidence. However, there has been much comment—there has been some tonight—that somehow what we are doing is against the wishes of those who are involved in police organisations. I do not believe that that is true.

I said in Committee and to representatives of the Police Federation that I do not believe that any member of the National Crime Squad, the National Criminal Intelligence Service or, for that matter, anyone else, will sign up to the proposed organisation until they have seen the full terms and conditions, and that is absolutely appropriate. However, we know that there is real enthusiasm on the part of those working in those organisations for the direction that SOCA will take. It will make sense in terms of good partnership working. It will be a new organisation with a new direction and a new way of bringing people together with real skills. It will make a real difference to tackling organised crime.

On that basis, I hope that the hon. Member for Sutton Coldfield will understand why creating SOCA is not only about creating another police force. It is about something that is entirely different. The effect of the agency will depend on how we organise it and on the people within it. I hope that the hon. Gentleman will withdraw the new clause.

Photo of Andrew Mitchell Andrew Mitchell Shadow Minister (Home Affairs) 9:00 pm, 7th February 2005

I am cut to the quick by the hon. Lady's suggestion that I was being ill-mannered towards her earlier on. I wish to make it absolutely clear that Opposition Members hold her entirely unresponsible for the disgraceful timetabling motion that meant that we had only half an hour to discuss intercept evidence. She has always been extremely courteous to myself and to my colleagues. Let me set the record straight in that respect.

I have listened carefully to the hon. Lady and I have been willing to be persuaded by her eloquent argument. Sadly, however, she has not brought me to that view. I listened to what she said about the National Crime Squad and the National Criminal Intelligence Service, and I am not sure that she made the right comparison. No doubt that matter will be dissected in the other place when it comes to consider this part of the Bill.

The hon. Lady seemed to suggest that Opposition Members were being highly theoretical. She teased the hon. Member for Somerton and Frome and myself for taking such a response, but I do not think that that is true. If anyone's approach is theoretical, it is that of the Government. The hon. Gentleman and I are concerned with the practicalities of the approach that the hon. Lady has been taking.

The hon. Lady says that she does not think that the Bill, as it stands, undermines the position of a constable. On that point, I and my colleagues, and I believe, the hon. Member for Somerton and Frome and his colleagues, take exception. It undermines the role of the constable in precisely the way in which I have described. Therefore, we wish to press the new clause to a Division. However, I thank the Minister for bringing forward her amendment on training, having listened carefully to what we said in Committee. We are most grateful to her in that respect. We wish to press that key new clause to a vote.

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

The House divided: Ayes 134, Noes 292.

Division number 73 Orders of the Day — Serious Organised Crime and Police Bill — [1st Allotted Day] — New Clause 6 — Interception of communications

Aye: 134 MPs

No: 292 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Question accordingly negatived.