Clause 45 - Extension of existing disclosure Powers

Criminal Justice and Police Bill – in a Public Bill Committee at 10:30 am on 6th March 2001.

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Amendment made: No. 136, in clause 45, page 35, line 24, at end insert—

`( ) In this section and section 46, ''information'', in relation to a power of disclosure conferred by a provision to which this section applies, includes—

(a) documents; and

(b) anything that falls to be treated as information for the purposes of the provision.'.—[Mr. Charles Clarke.]

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs)

I beg to move amendment No. 204, in page 35, line 28, at end add—

`(7) Nothing in this section shall permit disclosure of information under this Act in relation to the provisions listed in Schedule (Provisions excluded from Section 45).

(8) Disclosure of information under this section for overseas criminal proceedings or investigations shall only be permitted where the conduct in question to which the proposed disclosure of the information relates amounts to a criminal offence in both the United Kingdom and in the country or countries to which the information is to be disclosed.

(9) Disclosure of information shall not be permitted where the information in question relates to an agreement or decision by an association of undertakings or concerted practice which may affect trade between Member States of the EU.

Photo of Mrs Irene Adams Mrs Irene Adams Labour, Paisley North

With this we may take the following: Amendment No. 140, in schedule 1, page 101, leave out lines 22 and 23.

Amendment No. 141, in page 102, leave out lines 9 and 10.

Amendment No. 142, in page 102, leave out lines 24 and 25.

Amendment No. 143, in page 102, leave out lines 26 and 27.

Amendment No. 144, in page 103, leave out lines 1 and 2.

Amendment No. 145, in page 103, leave out lines 3 and 4.

Amendment No. 146, in page 103, leave out lines 5 and 6.

Amendment No. 147, in page 103, leave out lines 7 and 8.

Amendment No. 148, in page 103, leave out lines 9 and 10.

Amendment No. 149, in page 103, leave out lines 11 and 12.

Amendment No. 150, in page 103, leave out lines 15 and 16.

Amendment No. 151, in page 103, leave out lines 17 and 18.

Amendment No. 152, in page 103, leave out lines 21and 22.

Amendment No. 153, in page 103, leave out lines 23 and 24.

Amendment No. 154, in page 103, leave out lines 25 and 26.

Amendment No. 155, in page 103, leave out lines 27 to 29.

Amendment No. 156, in page 104, leave out line 15.

Amendment No. 157, in page 105, leave out lines 1 and 2.

Amendment No. 158, in page 105, leave out lines 3 and 4.

New schedule 1 —`Provisions Excluded from Section 45—

1. Fair Trading Act 1973, s.133(3).

2. Competition Act 1980, s.19(2).

3. Telecommunications Act 1984, s.101(2).

4. Companies Act 1985, s.449(1).

5. Financial Services Act 1986, s.180(1).

6. Banking Act 1987, s.85(1).

7. Water Industry Act 1991, s.206(3).

8. Railways Act 1993, s.145(2).

9. Coal Industry Act 1994, s.59(2).

10. Competition Act 1998, s.55(3).

11. Electronic Communications Act 2000, s.4(2).

12. Postal Services Act 2000, paragraph 3(1) of Schedule 7.

13. Utilities Act 2000, s.105(4).'.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs)

I welcome you to the Chair, Mrs. Adams. I am sure that you will look after us well, and be firm but courteous and kindly, as ever.

Amendment No. 204 would mean that disclosure of information provided to the authorities under the Acts set out in new schedule 1 was not permitted. It would permit disclosure only when the subject matter of a foreign investigation amounted to a crime in this country, and when it would exclude information that was subject to a European Union agreement.

The background to the amendments is the concern of business that the Government are changing policy in a way that may damage United Kingdom business. It is thought that the purpose of the clause is to allow important, confidential commercial information to be given to the United States anti-trust authorities in order to put UK businesses at peril of criminal action being taken against them for actions that are considered legal and proper in the UK and the EU.

It will also expose businesses that might, under United Kingdom law, have a civil liability for their actions to United States criminal laws. That is a huge departure from the previous consensus that we should protect British business, especially when its actions are entirely proper and legal under United Kingdom law, but also against a criminal liability when only a civil one exists in this country.

The change of policy has not been announced to Parliament; the provision is tacked on to a Bill that is about other matters, without proper consultation with the Confederation of British Industry, and at a damaging time in respect of EU efforts to tackle anti-competitive behaviour in Europe.

The United States approach to anti-trust is thought by many, including the CBI, to be determined by grounds that are beyond competition issues and subject to political pressures. The Assistant Attorney-General Ann Bingaman in the United States, who freely admitted that the US Government use their anti-trust law to benefit American companies by breaking open trade barriers extra-territorially, said:

``The primary goal of the anti-trust division of the Department of Justice has been to open markets and ensure that they are competitive, for the benefit of American businesses and consumers . . . the Division cannot limit its enforcement efforts to American firms or to conduct within the United States. Restraints imposed by foreign firms can harm American consumers and the American economy just as surely as those imposed by domestic firms. Our antitrust laws serve to protect American exporters from anti-competitive restraints imposed by foreign firms in foreign markets''.

The concern can be expressed a little more fully. The UK has severe penalties—up to three times 10 per cent. of UK turnover—for the breach of its anti-trust laws, but those are civil, not criminal, laws. That is different from the situation in countries such as the USA. As a result, although information could be disclosed to the US authorities for criminal anti-trust investigations or proceedings in the USA, the UK would not on the face of it be able to benefit to the same extent from any reciprocal arrangement here, as our law is not criminal.

The UK has a very different competition regime from that of the USA, so activities that are permitted by UK competition law could, in the USA, amount to a criminal act leading to fines and even imprisonment. UK anti-trust law largely mirrors its EU equivalent. Although both the UK and the USA outlaw similar types of market behaviour, UK and EU law allow some scope to exempt from being prohibited agreements or conduct that, on an initial view, restrict competition but have beneficial effects, based on the application of policy considerations beyond mere competition issues. It is not clear what legitimate interest the UK can have in helping to enforce US anti-trust rules that relate only to actions affecting the US market.

The European Commission plans to decentralise enforcement of EU anti-trust law to the national courts and competition authorities. In an attempt to ensure consistent application of the law in the reformed system, the Commission proposes to set up a network between it and the national competition authorities for the passing of information received in relation to complaints or investigations. Any information that is received in the network will have to be kept confidential. If not, injured parties would have rights of action. As a result, to disclose confidential information to the USA could be lawful as a matter of British constitutional law only if the activities on which the information was to be exchanged between the UK and USA related solely to activities confined to the UK, with no EU cross-border effect. Therefore, exchanging confidential information with the USA could put the UK in breach of its EU treaty obligations.

Inherent in extending the passing of information is the increased risk of disclosure of that information, inadvertently or otherwise. The tendency towards wide disclosure of information that exists in the USA exacerbates that risk, as does the litigious nature of US society generally. In US law, in a criminal anti-trust action, the Department of Justice is obliged to produce to the defendant any and all exonerating information. A criminal defendant has a constitutional right to receive all exculpatory and impeachment evidence in the prosecution's possession. In other words, if information falls into the hands of the Department of Justice, it is under a constitutional obligation to disclose it. British companies that give information as they should in respect of mergers and a range of other activities set out in new schedule 1 run the risk that, if a court action is pursued in the USA, the defendant will be able to see a range of confidential information that may be damaging to British business and give an advantage to a competitor.

At present, the UK operates a notification system for competition law, whereby companies that are not sure whether their agreements fall within the prohibitions in the Competition Act 1998 can approach the Office of Fair Trading for a decision or informal advice. The United States does not have such a system, because of its freedom of information laws and because it is a criminal process. Our view is that it is in the public interest for companies to be able to have the benefit of such advice from the OFT. It would be a great pity if the provisions meant that that no longer happened.

There is also a question about the way in which the Government are going about this. I have set out the CBI's concerns clearly and it is particularly upset that there has not been any real consultation with business. The fact is that the provisions have been tacked on to a Bill that deals with other matters, no doubt to curry favour with the Americans.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs)

I am generally in favour of currying favour with the Americans, which is obviously the reason for tacking on the measures, but it is important that the Labour Government recognise that they do not know business as well as they should. They should consult. I could go into a whole range of political issues where the Government have shown themselves to be inept as regards business, but this is not the place.

If the Government want to introduce something that will break with the long-standing tradition of protecting British business, and ensure that they do not make criminal that which is civil or open British companies to liability where it is unnecessary to do so, they should consult. It is poor practice not to find out what business thinks.

These are probing amendments, but we want the Government to take the issues on board and consult properly with business. Would it not be better to exclude the provisions from the Bill, hold consultations, and if necessary, introduce legislation that has more concern for British business? If the Minister is not prepared to consider that, he should at least fully explain why this is happening and acknowledge that the measures provide for a major change in policy that has not been announced to the House. Indeed, perhaps he could explain why the Secretary of State for Trade and Industry has not come to the House to explain why something so important is being changed.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

I welcome you to the Committee, Mrs. Adams. Unless something has happened since we last spoke, I am your Member of Parliament for part of your life, so I will try to represent your interests as well as I can.

Like the hon. Member for North-East Hertfordshire (Mr. Heald), the Liberal Democrats believe that this is an important part of the Bill, and a wide-ranging clause, which deserves consideration. We support the amendments, which would ensure that we limit the number of investigations in which the powers that are proposed in this and other clauses can be used. I share his view that we have not yet debated what information given to one Department, Government agency or public sector organisation should be available to another.

The Government seem to presume that it should be possible for all the information that comes into the hands of public authorities to be moved around. The Minister might deny that, but it looks like that and feels increasingly like that. It is a sign of a big brother approach. There are 71 Acts listed in schedule 1 that will be subject to the powers in the Bill by way of clause 45. There are Conservative amendments that aim to delete some of those Acts, and it is desirable to try to reduce the number of Acts to which the Bill will apply without consent.

I will reserve some comments for the clause stand part debate, but the burden of proof is on the Government—on those who argue that we need to change the position. I have long argued that we should have an integrated tax and benefit system. To take one practical example, there is an anomaly whereby defendants in court can use their financial position in mitigation, if, for example, they are drawing benefits, despite the fact that nobody can check that out. That is a controversial matter for debate, and I understand the technical complexities of integrating tax and benefits.

The proposal would allow all sorts of information transfers in the context of criminal proceedings. We must proceed cautiously. The two significant amendments in the group would limit the criminal investigations to serious arrestable offences and limit them to the United Kingdom. That is a better starting point; that is how we should seek to legislate. We all recognise that there is an increasing amount of international crime. I understand the need for provisions that cover areas wider than England, Wales, Scotland and Northern Ireland, but such provisions should be made with the consent of industry, agencies and the private sector. The legislation should be consistent across the EU and should have general public approval. I share the scepticism about whether we have got it right yet in respect of the debate about what disclosed information should be passed around. I do not think that people have yet assented to the proposition that when information is held by one agency, it should be commonly available.

The legislation absolutely should not be retrospective. There is a worrying tendency to legislate retrospectively. Someone might give information to an accountant, who then discloses it to the Financial Services Authority. Three years later, that information could be dug into, taken out and handed to someone else. That is completely contrary to the basis on which many agencies and public organisations work.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs) 10:45 am, 6th March 2001

Does the hon. Gentleman agree that the measure is specifically aimed at companies and the US anti-trust authorities? Other provisions allow the Government to disclose information for the purposes of investigations into serious offences overseas. For example, narcotic drugs and psychotropic substances are dealt with under the Criminal Justice (International Co-operation) Act 1990. A mutual assistance convention deals with criminal matters. The measure is not about drug trafficking, money laundering and such issues. It is about making it difficult for British companies that perhaps have a civil liability in respect of anti-trust legislation, making them criminals.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

That is my fear; it is a likely danger.

In my earlier life, I worked for the European Commission. I dealt with matters under articles 85 and 86, concerning monopolies and controls. There is a European Union regime for dealing with such matters. There is also a set of protocols, agreements and conventions that would benefit from being codified. The matter is becoming very difficult. In the case of employment, if members of the Committee chose to employ someone, and pay them a decent amount, the accountant would be expected to know which conventions, bilateral agreements or reciprocal tax arrangements apply. Agreements might be EU-wide, initiated by the Council of Europe, bilateral or, like the International Labour Organisation arrangements, brokered under an agency such as the United Nations. A variety of measures govern the dealings of the private sector.

We are debating a Bill about the citizen's rights vis-a-vis the state, but we have included other issues that would be far more at home in a debate about the Proceeds of Crime Bill, which was published in draft form yesterday. I would be happy to debate it. I have had discussions about it with people in other parties and my colleagues in Scotland. That would be a perfectly proper debate, and that is where this discussion should take place.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs)

Does the hon. Gentleman agree that it is somewhat incongruous that a Bill that deals with giving on-the-spot fines to those who are drunk and incapable in the street should have tacked on to it a rather complex piece of legislation dealing with anti-trust laws?

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

It is incongruous but, sadly, that is how the Government work. I have described previously what happens every year, particularly if the Prime Minister asks for eye-catching initiatives. Ministers scurry around to the civil servants in each Department and ask, ``What do you have at the top of the pile?'' They collect a list of topics. The history of Home Office litigation is a series of such portmanteau Bills, with a bit of this, a bit of that and a bit of the other all cobbled together and put under one title. That has happened almost every year since I have been in the House, so it does not surprise me—but it is not good legislation.

The Minister has often agreed that we must attempt to approach legislation logically, so that a Criminal Justice and Police Bill concentrates on a few issues to do with the criminal justice system, as that is normally defined, and the police system, and does not contain lots of additional items taken from the Christmas tree, as it were, which have been waiting in various queues in the Home Office for someone to act on—even though there is an argument for that. We are terribly bad at legislating coherently in this country. Our legislation is driven by a combination of inertia in the face of recommendations from the Law Commission and so on, and whatever the opposite is—I do not know whether ``ertia'' is a word—when an election is looming and the Government suddenly think that they should be seen to be doing something.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

I was interested in what the hon. Gentleman said about the work on article 85 that he used to do. I also worked on that, but from the industry's point of view, when I was with a multinational company. He said that it was a portmanteau Bill. Does he agree that it is more a kind of Christmas tree Bill on which the Government want to hang the trendy, eye-catching idea or initiative of the moment? I entirely support what my hon. Friend the Member for North-East Hertfordshire and he said about the fact that the Government are proposing such legislation only because an election is pending.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

We are getting into rather odd mixed metaphors about hanging eye-catching initiatives on Christmas trees; I thought that eye-catching initiatives were put in windows rather than on Christmas trees. However, the problem certainly exists.

I am not naive enough—probably no one else in the Room is either—to deny that when elections are looming, Governments rush around and try to look busier than they are. I guess that when the Conservative party was in office and, just a few years before that, when the Liberal party was in office—[Laughter.] My recollection of the Liberal party rushing around is not quite as clear as my recollection of the Conservative party rushing around, but they both did it. The nature of politics is that one seeks to respond.

It would be good to amend the Bill along the lines of the amendment but even better to remove the clause altogether. Unless we are persuaded otherwise, my hon. Friends and I will vote against the clause. It should be put in the right place at the right time, after considered debate.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

I again welcome you to the Chair, Mrs. Adams. You have had an entertaining taste of the friendly and cordial way in which we conduct our affairs.

Photo of James Gray James Gray Conservative, North Wiltshire

That is a bit rich coming from you.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

I thought that we had a cordial set of exchanges. I am sorry if I have caused offence. My main aim in life is never to do so.

Many points have been raised that require a response. On the origins of and consultation on the clauses, the key information disclosure provisions of the legislation implement a key recommendation of the performance and innovation unit report ``Recovering the Proceeds of Crime'', published in June 2000. Although that report was published as a statement of Government policy, its findings were open to consultation over the summer and no adverse comments were made over that time. Far from being a Christmas tree decoration hanging around in someone's drawer, the provision followed logically from the report published last summer.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

In a moment.

In response to the hon. Gentleman's points about the CBI, the Secretary of State for Trade and Industry has met Digby Jones in a meeting at which that organisation's concerns were raised. In addition, Department of Trade and Industry officials specifically raised the issue with the CBI before Christmas to make sure that it was fully aware of how the Government were implementing the recommendation. A further meeting between the CBI and Government officials was also held recently.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs)

The provision was not in the report of the performance and innovation unit to which the Minister referred.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

The information disclosure provisions of the legislation implement a key recommendation of that PIU report. The matter has certainly been discussed directly with the CBI. My hon. Friend the Member for Bradford, South (Mr. Sutcliffe) has just told me that last Friday, eight Labour Members, but no Conservative Members, attended a CBI lunch in Yorkshire to discuss those issues.

Photo of James Gray James Gray Conservative, North Wiltshire

That is in stark contrast to such a meeting in Wiltshire, to which two Conservative Members but no Labour Members turned up.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

That may reflect the character of the areas concerned.

The recommendation being implemented was recommendation 53 of the performance and innovation unit report. The clause has a limited purpose: to resolve uncertainty about the purposes for which disclosure may be made under the 70-odd provisions listed in schedule 1. That is achieved by harmonising the provisions in a way that generally enables information to be disclosed for any criminal investigation or proceeding, whether in the United Kingdom or overseas. The clause is not intended to affect the type of information that can be disclosed pursuant to the schedule 1 provisions, nor any procedures that may be in place to assess whether disclosure should be made in individual cases. The clause does not authorise the making of any disclosure prohibited by any provision of the Data Protection Act 1998, as subsection (5) makes clear. Moreover, in light of the remarks made by the hon. Member for Southwark, North and Bermondsey (Mr. Hughes), I must make it clear that the provisions do not operate retrospectively. I accept the points that he made in that regard, and take this opportunity to place that on the record.

There is a consistent and important case for the clause: it will strengthen the Government's policy to improve co-operation with others to fight all forms of international crime, including cartels and anti-competitive behaviour. We are worried that the amendments may weaken efforts to build such co-operation.

The clause will improve the ability of Departments and other bodies to share confidential information for use in the fight against crime. As I said, it will harmonise the 70-odd existing disclosure provisions to ensure that under all of them, information may generally be disclosed for criminal investigations and proceedings anywhere in the world, and it will remove doubt about the circumstances in which government bodies are permitted to disclose information. That is a step towards the codification that the hon. Member for Southwark, North and Bermondsey and I agree ought to be an ambition of law making in such areas.

The Government believe that it should be possible to disclose information for the purpose of assisting overseas criminal investigations and proceedings. Increasingly, criminals do not respect national borders. If we compare the days of Liberal Governments and even Conservative Governments with those of the present Labour Government, decade by decade the level of international criminal co-operation and organisation has increased exponentially.

Photo of Crispin Blunt Crispin Blunt Conservative, Reigate

I have been trying to reflect on what the Minister said earlier about cartels and anti-competitive behaviour being an example of international crime. Part of the CBI's problem with the provision is that in this country, anti-competitive behaviour is a civil offence, while in the United States it is a criminal offence and directors may face criminal prosecution and imprisonment for offences of anti-competitiveness, which they cannot here. Is the Minister saying that anti-competitive behaviour is an example of international crime?

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

I am coming to that point, which is addressed by amendment No. 201, and I will be happy to take interventions as I speak to it.

As I said, legislation is needed to assist in the fight against crime wherever it occurs, because crimes committed overseas can clearly impact on the United Kingdom. Examples of such crimes include trafficking in drugs or people, terrorism and illegal business cartels—on which I shall elaborate in a moment. Being better able to assist other countries in their investigation of crime will be in our national interest.

Nevertheless, the Government recognise the need for appropriate safeguards on disclosure. The clause is not a big brother clause, as the hon. Member for Southwark, North and Bermondsey suggested. We acknowledge that data protection issues are extremely serious; that is why the clause already includes a range of safeguards, which I shall set out. First, any safeguards in existing statutes on the disclosure of information will remain. Secondly, we provide additional safeguards in the clause, such as the important limitations provided by the Data Protection Act 1998 referred to in subsection (5).

Secondly, we provide additional safeguards in the clause, such as the important limitations provided by the Data Protection Act 1998 in subsection (5). In the context of disclosure overseas, the Secretary of State has the power, under clause 47, to prohibit the disclosure of information for the purposes of overseas criminal investigations or criminal proceedings that would otherwise be permitted by the provisions modified by clause 45. That power may be exercised when it appears to the Secretary of State that the overseas investigation or proceeding relates to a matter where it would be more appropriate for any jurisdiction or investigation to be exercised or carried out by the authorities of the United Kingdom or a third country.

On the question of anti-trust law raised by the hon. Member for Reigate (Mr. Blunt), the Government's view is that we should not be protecting companies from the consequence of activities that are illegal in other countries. The Government believe that we should improve co-operation with other countries over the enforcement of their own anti-trust laws in respect of offences that take place in their jurisdiction. It is not right to hinder anybody's fight against anti-competitive practices.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs) 11:00 am, 6th March 2001

The CBI has raised concerns with me over cases such as that of Pilkington. That British firm entered into a series of patent and know-how licensing agreements to manufacture flat glass. That was found to be permissible under UK and EU law. However, the US Department of Justice alleged that territorial and use limitations in the agreements precluded the licensees from competing for business to design, build and operate flat glass plants in other countries, and that Pilkington was, in effect, in breach of anti-trust legislation. In such circumstances, it is important that we protect British companies and uphold our own law. The Minister's proposals provide for greater disclosure than do the EU-US agreements or the present legislation. The measure is not just a consolidation—it goes further.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

I do not accept that. I will not comment on the detail of the Pilkington case—the hon. Gentleman will understand that it would not be appropriate for me to do so. On his general point, the powers to prohibit the disclosure of information for the purposes of overseas investigations that would otherwise be permitted may be exercised by the Secretary of State on the grounds that it appears to him that the investigation or proceeding relates to a matter in respect of which it would be more appropriate for any jurisdiction or investigation to be exercised or carried out by the authorities of the UK or a third country. That offers a reassurance in respect of the kind of case mentioned by the hon. Gentleman.

Amendment No. 204 has three parts. First, it would prevent the disclosure in relation to the 13 provisions in the new schedule. Secondly, it would require that information be disclosed for an overseas investigation only if that investigation related to conduct that is a crime in the UK as well as in the country to which the information was to be disclosed. Thirdly, it would prevent the disclosure of information that related to an agreement, decision or practice that may affect trade between the member states of the EU. I would like to deal with each of those parts in turn.

The first part of the amendment provides that nothing in clause 45 would permit disclosure in relation to the 13 provisions listed in the new schedule. Those provisions relate to competition law, utilities regulation, company law and financial regulation. Much of the information held pursuant to the statutes that contain those disclosure provisions will be confidential financial information, including information useful for competition inquiries. Nevertheless, it is also possible that information useful for any number of other criminal inquiries into offences such as fraud, tax evasion and money laundering may be held. We believe that the information holder should be free to disclose that information for criminal investigations or proceedings, whether in the UK or overseas.

Competition should not be seen as a special case. We believe that the Bill will permit UK authorities to assist countries that have criminal penalties in their anti-trust laws to prosecute criminal activities in breach of those laws that take place in their jurisdiction. Illegal cartels are bad for consumers, and it is in our interests to work against them. Globally, they affect billions of pounds worth of trade, and they must be dealt with.

The second part of the amendment would require that disclosure overseas be permitted only where it relates to conduct that amounts to a criminal offence in both countries. There will be safeguards on overseas disclosure in the provisions, but we do not believe in putting unnecessary obstacles in the way of effective co-operation in the fight against crime, wherever it occurs. The criminal law of many countries does not exactly mirror that of the United Kingdom, and never will do. For example, the Filipino originator of last year's so-called ``Lovebug'' computer virus was not apparently committing an offence in the country of the virus's origin.

We believe in furthering competition with other countries, irrespective of whether their domestic law contains criminal penalties. The cases for which information is likely to be sought by overseas authorities should relate to hardcore cartel activity, which the UK regards as a serious offence, even if UK competition law does not contain criminal penalties.

On the third part of the amendment No. 204, the Opposition proposal to limit disclosure in cases where it relates to an agreement, decision or concerted practice may affect trade between EU member states. The Government believe that it is important to improve co-operation with other countries in the enforcement of competition laws in respect of offences that take place within their jurisdiction. We do not want to hinder anyone's fight against anti-competitive practices. The safeguards in the clause will ensure that any information that infringes the jurisdiction of the UK or a third country will not be disclosed for the purposes of any criminal investigations or proceedings.

The suggested broad prohibition would prevent disclosure in anti-competitive and other types of agreement. For example, disclosure might be impossible in respect of fraud, theft or smuggling investigations. The proposed prohibition would be capable of preventing disclosures both overseas and in the UK, which would mean a substantial limitation of the extent to which disclosure is possible under schedule 1.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs)

We are obviously at an early stage in the Bill, although it is being pushed through at breakneck pace. Will the Minister find time to discuss the matter personally with the CBI?

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

I am happy to give that commitment. I intended to do so in any case, following the hon. Gentleman's earlier remarks. It is a reasonable request. I shall elaborate further in a moment.

Amendments Nos. 140 to 158 would reduce the benefits of the clause by removing the reference to a disclosure provision from the list of provisions to be amended. The amendments would impose barriers to sharing information for any and all forms of crime and would leave in place an array of similar but differently worded information disclosure provisions, which would allow anomalies to continue. New schedule 1 would also reduce the benefits of the clause by preventing its operation in relation to the 13 listed provisions, so it is not the best way to operate.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

I will give way before I finish, but I want to make some progress first.

I have already given a commitment to consult the CBI personally, hopefully before Report, though the time scales will be tight. We are always happy to discuss specific matters that cause difficulty to British industry. There has been consultation, including meetings with the Secretary of State for Trade and Industry. If that is viewed as inadequate or it is felt that the Government have not understood the various concerns, I would be pleased to discuss them further.

Before giving way to the hon. Member for Southwark, North and Bermondsey, I remind him of ``Microcosmographica Academica'' produced in Cambridge by Professor James Cornford in 1899. It invented the principle of unright time, according to which there was never a right time for doing anything, so nothing was ever done. I understand the point about Christmas trees, but the idea has not been plucked out for some eye-catching reason: it flows out of last year's PIU report. I urge the hon. Gentleman not to cut off his legislative nose to spite his face if he feels that the provisions are not necessary to strengthen the fight against organised crime. I also urge him not to vote against them on the basis of the principle of unright time: he should evaluate the clause on its merits.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

On the last point, we are concerned about the breadth and the timeliness of the clause, to which I shall return later. Yesterday, the Government published the draft Proceeds of Crime Bill and a proper debate on international aspects of crime and its information flow is taking place. Might it not have been better to introduce legislation to deal with such matters together with the current provisions? Both considerations were in the pipeline, one just behind the other, and it would have been more logical to deal with them in a single piece of legislation. They should be considered together in the next legislative Session—whoever wins the next

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

I understand that reasonable point, but the clause has a limited purpose: to resolve a series of uncertainties about the application of current law. It stands on its own. I accept that it could have been done in a more holistic way, but we must continue to improve the law from whatever stage we have reached. In dealing with some internationally organised criminal efforts—especially drug and people trafficking, money laundering and paedophilia—it is important to make progress in exchanging data as rapidly as possible. I urge the hon. Gentleman to examine the merits of the clause from that perspective, and I hope that Opposition Members will, on the basis of my assurances, reconsider and not press the amendments to a vote.

Photo of Crispin Blunt Crispin Blunt Conservative, Reigate

Having heard the Minister's list of serious offences for which it is important to exchange information to bring international criminals to justice, his case might seem to be unanswerable. However, amendment No. 204 is not about that. When Parliament has decided what counts as a criminal offence here, the opportunity arises to disclose information from the United Kingdom to other overseas agencies that are conducting criminal investigations within their jurisdiction. The double test is entirely proper in those circumstances.

Information held by agencies of the UK will be given to other Governments who are pursuing criminal inquiries. If the offences are not crimes in the UK—because Parliament has not seen fit to make them so—why allow our information to pass to other countries in pursuit of overseas criminal investigations? I ask the Government to think again about the amendments. The double test is necessary to protect liberty, and the Minister's reassurances—that the provisions will apply only to serious inquiries about serious crimes in other territories—are inadequate. We do not know in advance what the inquiries will be, or whether other jurisdictions will use the powers of the state to pursue vindictive and determined prosecutions against individuals.

If we allow the Bill to impose a duty to disclose information about individuals in respect of matters that are not criminal offences in the UK, we are laying our citizens open to something that we should not permit. Unless cases involve actions that are criminal offences under our law—and are so regarded by Parliament—we should not allow disclosure of information willy-nilly to other international jurisdictions. Activities should be crimes both in our and in foreign jurisdictions before information is disclosed. That is surely not too high a threshold to meet.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

I understand the hon. Gentleman's point, but does he not accept that under clause 46 the Secretary of State has a string of powers to decide when information should not be disclosed, which provides a significant safeguard against abuse?

Photo of Crispin Blunt Crispin Blunt Conservative, Reigate

Those powers provide a significant safeguard so long as the Secretary of State is well intentioned and on top of his job. However, it would be much better if Parliament made the decisions. Parliament has decided whether particular activities are criminal and Parliament should ensure that information be disclosed in pursuit of a criminal investigation in the overseas territory only if it also amounts to a crime in the UK. That is all that the amendment is designed to do, so I hope that the Government will think again.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs) 11:15 am, 6th March 2001

We are concerned about the issue for several reasons. My hon. Friend the Member for Reigate made a good point. With almost every law, we could say that the Home Secretary could decide what information to give to foreign authorities and what was a crime. He could tell the police what to do and run the police force, and we could make this an authoritarian country like those in eastern Europe not so long ago.

Traditionally, however, we have liked Parliament to say what the laws are and to give people protections, and we have not liked the Executive to have too much discretion. I am not suggesting that the Home Secretary would act in an utterly illiberal way—although others might suggest that. My right hon. and learned Friend the Member for Rushcliffe (Mr. Clarke) has made remarks on the subject, but it is a fundamental principle that protections should be in law and that we should pass laws that give Ministers restricted powers.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

My hon. Friend will recall that we both served on various Committees that considered criminal justice legislation in the previous Parliament. Was it not the case that Labour Back and, indeed, Front Benchers criticised the previous Conservative Home Secretary time after time, suggesting that he would be authoritarian and would be given too much power? Now that the Labour party is in government, there is a deafening silence from those on the Labour Benches when the present Home Secretary proposes far wider powers. In place of all the usual speeches in defence of organisations such as Liberty, there is silence.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs)

That is true. The other point is that Labour Members used to make those speeches at far greater length than we are being allowed to do. As I have said before, there were 240 hours of debate on the Criminal Justice and Public Order Bill. Even at an earlier stage of this Parliament, the Government were somewhat more liberal with time. In Committee on the Crime and Disorder Bill, there were 22 sittings for a Bill of 130 clauses. At the end, the right hon. Member for Cardiff, South and Penarth (Mr. Michael) said that it had been a marvellous example. He said:

``I . . . thank those who have been involved in the work of the usual channels to enable the Committee to deal with the Bill expeditiously without having to sit through the long hours of the night. That was a great disappointment to some hon. Members''.

He also said:

``It takes both sides of the Committee to achieve that standard of debate— a very high standard—

and Opposition Members have on several occasions proved passionate and persuasive advocates of causes that we might not have assumed that they would support.''—[Official Report, Standing Committee B, 11 June 1998; c. 869-70.]

This Bill, however, is being guillotined, and we are being treated in an insulting way.

Photo of James Gray James Gray Conservative, North Wiltshire

Has my hon. Friend noticed that, according to the amendment paper, we shall today give detailed scrutiny to 24 clauses, 41 Opposition amendments, 27 Government amendments, 13 new clauses and 9 Government new clauses, which cover 13 pages of detailed print? Does he agree that that is a disgrace and a travesty of proper parliamentary debate?

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs)

If we manage to do that, someone should give us a ``Jim'll Fix It'' badge, but that is nothing compared with the 50 clauses that we must get through on Thursday.

According to the CBI, clause 45 will permit the disclosure of enormous amounts of information to overseas authorities for criminal proceedings that relate to economic activity in the UK that is not criminal here. I will not go through the various Acts, because we do not have time, but the information that is given to the authorities under the Fair Trading Act 1973 is given on the strict terms that it can be disclosed only for certain purposes. The same is true under the Competition Act 1998. The point is that, under all those Acts, disclosure is limited to serious criminal investigations, perhaps into drug trafficking or money laundering. That is very different from anti-trust cases.

The American Webb-Pomerene Act on cartels provides a limited anti-trust exemption for the formation and operation of associations of otherwise competing businesses to engage in collective export sales. The exemption applies only to the export of goods, wares or merchandise, and does not apply to conduct that has an anti-competitive effect in the United States.

Cartels are treated with great reserve in Europe, especially the United Kingdom, and are specifically excluded from the 1998 US-EU agreement. The Bill as drafted would enable the Home Secretary to give information about Webb-Pomerene cartels to the United States authorities, despite the fact that everyone in Europe disagrees with the Americans on the issue.

I have already referred to the Pilkington case, in which a British company used its patents and know-how licensing agreements for the manufacture of flat glass using a proprietary process with several of its US licensees. That is perfectly permissible in UK and EU law—indeed, it is strongly approved of—yet the Department of Justice in the United States brought charges alleging anti-trust. There are many such examples, and there is anxiety that there is a political element to many of the decisions taken.

I quoted assistant Attorney-General Ann Bingaman, who made it clear that the primary goal in the anti-trust division of the Department of Justice is to open markets and to ensure that they are competitive for the benefit of American businesses and consumers.

We do not want to pander to the Americans and damage British businesses in the process, so I ask the Minister to think again. I am glad that he intends to meet the CBI. We will press the amendment to a Division, because we want to make the point forcefully.

Question put, That the amendment be made:—

The Committee divided: Ayes 5, Noes 8.

Division number 21 Adults Abused in Childhood — Clause 45 - Extension of existing disclosure Powers

Aye: 5 MPs

No: 8 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

I beg to move amendment No. 205, in page 35, line 28, at end add—

``(7) Information to which this section applies which is information about a living and identifiable individual shall not be disclosed by virtue of this section except by or with the authority of a circuit judge.

(8) For the purposes of subsection (7), a judge shall only authorise such a disclosure if he is satisfied that there is reasonable suspicion that a criminal offence has been committed and that the disclosure is likely to be of substantial value (whether by itself or together with other material) to the investigation of an offence.''.

Photo of Mrs Irene Adams Mrs Irene Adams Labour, Paisley North

With this we may take the following amendments: No. 206, in clause 47, page 37, line 19, leave out from second ``of'' to end of line 20 and insert ``a circuit judge''.

No. 228, in page 37, line 20, at end insert—

``(3B) Information to which this section applies shall not be disclosed by virtue of this section unless the Commissioners by whom or with whose authority it is disclosed are satisfied—

(a) that it will be used solely for the purpose of the criminal investigation or criminal proceedings in respect of which it is disclosed; and

(b) that it will be destroyed, or returned to the Commissioners, once the criminal investigation or criminal proceedings in respect of which it is disclosed are complete.''.

No. 229, in page 37, line 20, at end insert—

``(3A) The authority of the Commissioners referred to in subsection (3) shall only be given in relation to information held by them which is identified specifically when the authority is given, and may not be given generally, or on a permanent basis, in respect of information held by them which relates to any particular person or persons.''.

No. 207, in page 37, line 40, at end insert—

``(9) For the purposes of subsection (3) a judge shall only authorise such a disclosure if he is satisfied that there is reasonable suspicion that a criminal offence has been committed and that the disclosure is likely to be of substantial value (whether by itself or together with other material) to the investigation of an offence.''.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

The amendment is consistent with many themes that we have pursued in this and other Bills and would require that if information covered by the clause relates to a living, identifiable individual, a judge rather than an official must authorise the disclosure. It is an attempt to give the process a judicial oversight—whatever we think of the process—rather than putting that in the hands of someone less independent, for example a member of the Executive.

Amendment No. 206 relates to clause 47 and would ensure that information held by the relevant tax authorities—commissioners of the Inland Revenue and of Customs and Excise—is governed by an independent judicial review rather than by appointed commissioners who, although they have judicial authority, are regarded as particularly close to the two agencies in question because they work with them all the time. We propose that a circuit judge should be the relevant authority.

Amendment No. 207 would provide another test by which a judge would authorise disclosure. It would raise the threshold by requiring that the judge is satisfied that there is a reasonable suspicion that a criminal offence has been committed and, more importantly, that the disclosure is likely to be of substantial value to the investigation of an offence. It is an attempt to ensure that we do not end up granting power to disclose where that would make relatively little difference. A serious benefit to the process has to be involved, to prevent people from being harassed by authorities, with the double checks of a reasonably high threshold and an independent judicial review.

I hope that I have been brief. Our view throughout much of the Home Office legislation—we have also had the debate in the context of the Terrorism Bill and the Regulation of Investigatory Powers Bill—has been that it is important for public confidence that those who take decisions about disclosure or the exercise of power by authorities are part not of the Executive but of the judiciary. That is an important principle and we must not be seen to cross that line. The decision makers should not be part of the process of judicial oversight normally attached to the area but stand entirely free from it.

I hope that the amendments find favour with the Committee. I am happy to discuss a form of redrafting with the Government if they are minded to accept our proposals in broad terms.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

I understand that we are not taking amendments Nos. 228 and 229 at this stage. I would be grateful for clarification on that. If that is correct, we will debate only amendments Nos. 205, 206 and 207.

As the hon. Member for Southwark, North and Bermondsey said, the relative roles of the judiciary and the Executive in carrying through anti-criminal measures has been a frequent topic of discussion between us over the past two Sessions of Parliament. There is no dispute, at least in principle, about the need to take such action, but there is a dispute about whether it should be authorised by the Executive or the judiciary. It would not be helpful to go through that debate at length. I simply refer hon. Members to previous discussions in the Chamber and elsewhere.

We do not believe that putting the judiciary in the role proposed in the amendments would provide further safeguards. Clauses 45, 46 and 47 provide substantial safeguards. I have already outlined the significant ways in which the safeguards under clause 45 would work. Clause 47 provides that no obligation of secrecy, except in the requirements of the Data Protection Act 1998, shall prevent the voluntary disclosure of information by the Inland Revenue and Customs and Excise for the purposes of any criminal investigations or proceedings in the UK or elsewhere, and of initiating, bringing to an end, or determining whether to initiate or bring to an end, any criminal investigations or proceedings in the UK or elsewhere. That is because information held by those bodies is extremely important in such investigations and proceedings.

I will not labour the arguments any further. Onward disclosure of revenue department information will require the authorised consent of that department. There are strict administrative controls on the disclosure of information by the revenue departments and under section 182 of the Finance Act 1989, which makes any unauthorised disclosure of information by the Inland Revenue or Customs and Excise staff a criminal offence, punishable by a fine and/or up to two years' imprisonment.

We believe that such matters are appropriate for the Executive and that there is a range of safeguards in the current legislation. We see no advantage either to the citizen or to the operation of our criminal justice policies in bringing in the judiciary as proposed in the amendments. I hope that, on consideration, the hon. Member for Southwark, North and Bermondsey will be prepared to withdraw the amendment.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Home Affairs) 11:30 am, 6th March 2001

I do not intend to speak to amendments Nos. 228 and 229, because there is not sufficient time, although it might be possible to do so on Report.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

The Minister's reply was predictable because, as he said, we have had this debate before. I am still unhappy about his response, but given what was said earlier, I will withdraw the amendment, despite being not at all comfortable about the idea of keeping Executive rather than judicial oversight. However, I will vote against the clause, for the reasons set out in this and previous debates, and because, even if it were drafted in a way that satisfied us, it would be better elsewhere in the Bill. I take the Minister's point that it would be difficult to justify voting against the clause for my final reason alone, but we have serious reservations.

I am happy to facilitate the Committee's work, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause, as amended, stand part of the Bill:—

The Committee divided: Ayes 8, Noes 2.

Division number 22 Adults Abused in Childhood — Clause 45 - Extension of existing disclosure Powers

Aye: 8 MPs

No: 2 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly agreed to.

Clause 45, as amended, ordered to stand part of the Bill.