Clause 56 - Disclosure notices

Serious Organised Crime and Police Bill – in a Public Bill Committee at 9:30 am on 13th January 2005.

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Photo of David Heath David Heath Shadow Spokesperson (Home Affairs) 9:30 am, 13th January 2005

I beg to move amendment No. 172, in clause 56, page 30, line 32, leave out 'expedient' and insert 'necessary'.

Subsection (2) provides the grounds on which an investigating authority may give a disclosure notice or authorise an appropriate person to give one. There are three such grounds, the first of which is if it appears that  

''there are reasonable grounds for suspecting that a person has committed an offence'', which we would all understand. The second ground is if

''the conditions in subsection (1)(b) and (c) are satisfied'', which refers to a person who has information about an offence. Then there are the rather curious grounds on which a disclosure notice may be given, in subsection (2)(c), which are if

''there are exceptional circumstances making it expedient to do so''.

Such circumstances are those that apply neither to a person who has committed an offence or is suspected of having done so, nor to a person having information about an offence or suspicions of one having been committed.

I am not absolutely clear when the subsection might apply. What are the exceptional circumstances in which a prosecuting authority could apply a disclosure notice to somebody who neither is suspected of having committed an offence nor has information about an offence being committed? Paragraph (c) seems odd indeed.

Assuming that the Minister can explain why the provision is there in the first place and will describe the circumstances in which it might be used—I hope that she will give one or more examples—I do not think that the question should be one of expediency. Using such an extraordinary measure, under such extraordinary circumstances, should be a matter of the utmost gravity. I object to the word ''expedient'', because expediency can take many forms. It might mean the convenience of the prosecuting or investigating authorities, but it could even mean enabling a person to go home in time for tea. Expediency is not a sufficient test.

The amendment is therefore simple and would leave out ''expedient'' and insert ''necessary'', which would at least ensure that the disclosure notice would be required only because it was necessary to complete the investigation, which should surely be the starting point of any consideration anyway. I also hope that the amendment will give the Minister an opportunity to explain why subsection (2)(c) is in the Bill at all and to describe the circumstances that might require it to be used.

Photo of Mr Tony McWalter Mr Tony McWalter Labour/Co-operative, Hemel Hempstead

I hope that the Committee will resist the amendment. The Liberal party is dealing with the issue in an extraordinary way. When serious offences are being committed, quite often the first thing that the police come across is a rather trivial offence.

I have just been on the parliamentary police scheme. One of the cases that we looked at was that of a builder who had dumped some rubble in front of the house of somebody who had not paid for their driveway. However, underlying that trivial matter—although it was not so trivial for the people who could not get into their house—was a sophisticated network of people knocking off driveway materials and cheating the Inland Revenue and Customs and Excise on a huge scale. It was only because an apparently trivial offence was seen as the tip of an   iceberg and referred to those capable of dealing with interwoven networks that that network of serious offences was picked up.

It is sometimes necessary to get information by requiring people to say in the first place, for example, exactly where they got their driveway materials. I hope that the Minister will resist the extraordinary idea that serious offences should come with a big sign on their foreheads saying, ''This is a serious offence.''

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

My hon. Friend the Member for Hemel Hempstead (Mr. McWalter) is right to say that we are dealing with a spider's web of connections and networks. I have talked before about criminal entrepreneurs who corrupt legitimate businesses in pursuit of their aims. We need safeguards and we have safeguards in the Bill.

The hon. Member for Somerton and Frome raises an important point about when it is appropriate to give a disclosure notice to a person suspected of one of the specified offences. Several hon. Members raised that on Second Reading. Our intention is that notices will usually be given to people other than the primary suspects, partly as they are more likely to co-operate and partly because of the protections against self-incrimination for the subject of the notice.

As my hon. Friend the Member for Hemel Hempstead said, however, the full involvement of all the players in complex organised criminality is often not obvious at the beginning of an investigation. Also, in certain circumstances the prosecutor may decide to give a notice to someone suspected of one of the offences anyway. For example, a junior member of a criminal group may be suspected of one of the specified offences, but the prosecutor may believe that serving a notice on him would provide information of substantial value to the wider investigation, and that the benefit of that would outweigh not being able to use a self-incriminatory statement made by the junior member.

The clause currently creates a bit of an artificial statutory distinction between those suspected of an offence on the list and others. The analogous powers work effectively without such a legislative distinction, and prosecutors can manage the issues in deciding whether to issue a notice against a suspect, based on their oversight of the full investigation. I therefore propose to introduce amendments on Report to remove that distinction.

I draw to the attention of the hon. Member for Somerton and Frome the word ''and'' between paragraphs (b) and (c) of clause 56(2). The provisions do not stand alone. His amendment would strengthen the artificial distinction. Rather than leaving the matter to the prosecutor's discretion, it would allow someone suspected of one of the specified offences to be given a disclosure notice only when it was ''necessary'' to do so. In practice, it would be quite difficult to argue that it was necessary to interview anyone, so I call on him to withdraw the amendment and to understand the reasons why prosecutors should have flexibility, albeit based on comprehensive guidelines on disclosure, which provide safeguards for individuals against self-incrimination.  

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

I am grateful for the Minister's explanation. The fact that she will rewrite the clause gives me some comfort, because it is not worded entirely sensibly. I could launch into a tirade of invective against the hon. Member for Hemel Hempstead.

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

It is too early in the day, although the extraordinary comments of the hon. Member for Hemel Hempstead would not have been out of place in the ranks of the Stasi—''We have ways of making you talk and it doesn't matter what offence you have committed.'' The matters raised are serious, but so are justice and the legal system. The idea that we can extend willy-nilly enormously intrusive powers of coercion will not do, even in new Labour. I am grateful for the Minister's explanation of the limitations of what she proposes, because it could serve as a helpful study aid for the hon. Gentleman, who seems to misunderstand these matters.

I appreciate what the Minister said about introducing amendments to the clause and I look forward to hearing what she has to say about them at a later stage. It would be otiose to amend at this stage what is to be amended, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn

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

I beg to move amendment No. 100, in clause 56, page 30, leave out lines 37 to 39 and insert

'a legally qualified prosecutor in the employ of the Director of Public Prosecutions, SOCA or the Revenue and Customs Prosecution Office.'.

Photo of Mr Bill O'Brien Mr Bill O'Brien Labour, Normanton

With this it will be convenient to discuss the following amendments: No. 212, in clause 56, page 30, line 37, leave out 'constable' and insert

'police officer who is not below the rank of superintendent.'.

No. 207, in clause 56, page 30, line 38, leave out paragraph (b).

No. 232, in clause 56, page 30, line 38, after 'SOCA', insert

'of the equivalent rank to a person to whom paragraph (a) above applies.'.

No. 233, in clause 56, page 30, line 39, at end insert

'of the equivalent rank to a person to whom paragraph (a) above applies.'.

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

Amendment No. 100 would simply ensure that the disclosure powers would be implemented by a prosecutor, who is a legally qualified person, and that on no occasion would it be left to an investigating officer—a police officer—to decide that it was possible and necessary to use them. That is an important distinction, and I think that it is inherent in what the Minister has said. I do not think that there is any intention of extending the powers to people who are not legally qualified prosecutors, but the Bill does not say so with sufficient precision. My view is shared by the Law Society, which has expressed concern and wants to remove any ambiguity.

My amendment is in line with what the Minister has said, but I should be delighted if she demonstrated that   it is unnecessary because the Bill covers the point already.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

We have reached an important provision, on which I have tabled amendments, but I shall begin by commenting on the amendment tabled by the hon. Gentleman, who raises an important point. Who will hand out the notices? He has come up with an alternative proposal of specifying that it should be

''a legally qualified prosecutor in the employ of the Director of Public Prosecutions, SOCA or the Revenue and Customs Prosecution Office.''

There may be other approaches, but I feel particular concern when I note that two of the categories of people who can give out notices under subsection (3) denote, effectively, individuals with the rank of a police constable, and that another category is simply a member of staff of SOCA. It need not be a member of staff who also holds a constable's warrant, in the way that we heard on Tuesday. Anyone who carries out the task of handing out disclosure notices should be a constable. An officer of Revenue and Customs will, I think, have a constable's rank. However, a member of the staff of SOCA will not.

The question also arises of the appropriate police rank, which is why our amendments require the person concerned to be someone not below the rank of superintendent. The amendments are all probing amendments and they are intended to get a bit of a debate going.

To return for a moment to the points made by the hon. Member for Hemel Hempstead—I do not think that we can get away from this—there are always defences of necessity offered by the state, but the powers in question are of a kind that one would identify as the hallmarks of a fascist state. If we are going to pursue such a route because we think that it is necessary for the curbing of crime, we should keep that constantly at the back of our mind. We are breaching—admittedly not for the first time, but certainly more widely than ever before—the principle that people, and especially those who are not themselves under investigation, should not be required to do anything to co-operate with the state, and certainly not to answer questions as opposed to just producing documentation.

Safeguards must exist. If, as I understand from the Minister, all those people carrying out what I call the on-the-street operation will have constable's warrants, I do not understand why the staff member of SOCA need be identified separately at all. Presumably the staff member turning up would also be a constable and therefore under an obligation to exercise an independent judgment.

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Home Office) 9:45 am, 13th January 2005

As has been described by the hon. Member for Beaconsfield, the amendments reflect questions about how investigators and prosecutors will work together in issuing and using these notices. Those concerns have been raised by the Law Society and Justice, among others. Getting their respective roles right will be absolutely critical in ensuring that the information gained supports prosecutions and that the rights of those subject to notices are not infringed.   All of us recognise that in tackling organised crime, investigators and prosecutors need to work closely together in making critical decisions at early stages of investigations, particularly, as has already been touched on, at the point of using the notices.

The powers of forced entry, search and interview under this chapter are more appropriate to be used by investigators than prosecutors. However, as I emphasised earlier, the prosecutors have a key role, first, in authorising the use of the powers and, secondly, in agreeing with the investigators how they will be used. We see the powers being used in partnership, with the prosecutor in the authorising role. Often the prosecutor will be involved in the execution of the powers, but that will not always be the case. We will ensure that prosecutors and investigators have proper training and clear guidance on how they should use these powers in practice.

The amendments would restrict who can exercise the functions of giving disclosure notices, as per clause 56, or of taking copies or extracts of specified documents and requiring a person who cannot produce a document to explain where they are, as per clause 57. It is important, if we are to be effective in using the powers of disclosure, that there is the ability to question individuals. We could be talking of vast quantities of documentation—not just paper documentation, but also that held on computer systems. We would, in all honesty, be creating something of a lame duck for ourselves if there was no opportunity or ability to ask some questions about documentation. I acknowledge that people did have concerns when we consulted via the White Paper on powers to tackle organised crime, but there was an understanding that if we are to have powers, those powers must be meaningful.

The functions under a clause 60 warrant include entering and searching premises using force if necessary, seizing documents or taking copies or extracts from them, and requiring an explanation of where documents are if they are not available. I suggest to the hon. Member for Somerton and Frome that carrying out these functions is very different from the prosecutor's role in authorising the notices themselves. Amendment No. 100 would restrict those who would carry out these functions to lawyers, but we believe, as I have tried to explain, that the practical execution of the functions should rest with investigators who are trained and experienced in this work, as we have set out in the Bill.

Amendments Nos. 212, 232 and 233 would set a minimum rank for investigators involved in carrying out the functions. We obviously agree these are sensitive and potentially intrusive new powers that will need to be authorised and exercised appropriately. The Bill provides for disclosure notices and application for warrants, as I have said, to be authorised by a Crown prosecutor or their equivalent, delegated by the relevant director or the Lord Advocate. In delegating those powers, the directors and Lord Advocate will want to ensure that the prosecutors are appropriately senior and experienced. The prosecutor will also specify which law enforcement staff can use the powers in the   disclosure notice. It would be sufficient to ensure that use of the power is authorised by appropriately senior prosecutors, so there is no need to specify on the face of the Bill the minimum ranks of the investigators carrying out these orders. To reserve the practical application of this power to a superintendent would be far too restrictive and would not be effective enforcement.

Photo of James Clappison James Clappison Conservative, Hertsmere

The Minister is talking about the rank of the person who authorises the exercising of the power. As she said, the person who actually exercises the power will be exercising some important functions, which she described, and will have some important powers. In clause 56(3), the appropriate person who is authorised to exercise those powers and who then carries out these functions is a staff member of SOCA. Will she say who and what the members of SOCA will be for these purposes?

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

We had a huge discussion about that on Tuesday. In many respects, the hon. Gentleman makes a point that divided the Government and the Opposition. SOCA will be made up of several individuals with particular skills and experience, which will help us to defeat organised crime. Some members will have a police background, a Customs and Excise background and so on. As we discussed on Tuesday, the Government believe that SOCA staff, where appropriate, should be designated with powers to carry out their functions. That is why we discussed giving the powers of the constable to other individuals, after accredited training, who may not have come from a policing background. The Government and the Opposition clearly disagree on that.

Any staff member of SOCA involved in executing the disclosure notices will be given the necessary training and any staff member exercising search powers will be designated. As I said on Tuesday, we will not shoot ourselves in the foot by sending out SOCA staff to carry out these functions if their ability to do so could be challenged. That is why training and designation are so important.

That point links to amendment No. 2007—I mean 207.

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

It is going to be a long, long day.

In some ways, amendment No. 207 amplifies our debate on Tuesday and the differences between the Government and Conservative Members. The Government do not believe that SOCA will be a police organisation staffed either by police officers with the powers of a constable or by immigration and Customs officers. If that were the case, the hon. Member for Somerton and Frome would be right that we should leave out paragraph (b), as it would no longer serve a purpose, and we would therefore support the amendment.

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

I am grateful to the Minister for setting out her position, which I shall consider carefully. In parenthesis, in response to the Conservative amendments and as I said on Tuesday, it would be helpful to have an early indication of how SOCA will   be organised. Will it have a rank structure, and if so, in what form? It must have a rank structure. It is not possible to operate a body of that size without a chain of command. Whether or not it is a policing organisation, one would assume that, like its parent bodies, it will have levels of responsibility other than the director general and the directors, who are the only known ranks at this stage. I would be grateful if the Minister gave the Committee her Department's thoughts on the matter at some point, because it will impinge on how enactment will work.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I beg to move amendment No. 208, in clause 56, page 30, line 43, leave out paragraph (a).

Photo of Mr Bill O'Brien Mr Bill O'Brien Labour, Normanton

With this it will be convenient to discuss the following: Amendment No. 209, in clause 56, page 30, line 45, leave out paragraph (b).

Amendment No. 210, in clause 57, page 31, line 19, leave out from 'notice' to end of line 21.

Amendment No. 211, in clause 58, page 32, line 17, at end insert—

'(5)(A) A person may not be required under section 56 to produce any document or information provided to him under a duty of confidentiality in respect of it.'.

Amendment No. 215, in clause 60, page 33, line 37, leave out from 'to' to 'state' in line 38.

New clause 16—Legal privilege—

'(1) Provision may be made by regulation for the resolution of disputes as to whether a document, or part of a document, is an item subject to legal privilege.

(2) The regulations may, in particular, make provision as to—

(a) the custody of the document whilst its status is being decided,

(b) the appointment of an independent, legally qualified person to decide the matter,

(c) the procedure to be followed, and

(d) the costs of the proceedings.'.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I apologise, Mr. O'Brien, for not being able to hear the Minister's reply to the amendments or to participate further in the debate once I have spoken. However, as I tabled most of the amendments, I will speak to them.

The Bill gives the power not only to seize documents or to ask where they might be, but to ask questions of a third party who is not under investigation in respect of the content of those documents. Power exists in company law and in respect of serious fraud to ask a third party to provide explanations. However, when the power in this part of the Bill was first proposed, the justification for it, which I heard on the radio, was that it was inconvenient to have to go to court to obtain a production order in relation to documents and that what was desired was the ability to attend the home of a third party and to secure documentation without going through the court procedure. I was comfortable with that concept, as it seemed that what was proposed made sense. On examining the detail, however, it became clear that a much wider power was proposed,   although the explanation on the radio was probably not made wilfully. It is the power not only to say, ''Have you got any of Bloggs's documents in your house,'' or to seize them or to say, ''Can you show me where they are?'', but to say, ''Tell me what these things are all about from what you know of them?''.

I said earlier, not entirely tongue in cheek, that these are fascist provisions, the provisions of a totalitarian state. If they are to be implemented, we need a good and sufficient reason for doing so. As the hon. Member for Somerton and Frome said earlier, which I echoed, SOCA's remit is potentially extremely wide.

These are probing amendments on a matter of principle; I hope that the Minister will take the opportunity to discuss them, and I will read Hansard and think about what is said. I hope that she will explain why the power has to be so widely drawn if what is desired is the ability to seize documentation and materials speedily. The measure goes much further than that, and it could be argued that if the Minister wishes to include the power to ask questions of a third party about the material, it should be put in a more restricted setting than that of the seizure of documents—there could be a two-tier system. I will return to the matter on Report if I am not satisfied with the Minister's answers.

Photo of Mr Tony McWalter Mr Tony McWalter Labour/Co-operative, Hemel Hempstead

Will the hon. Gentleman confirm that he is not committing the logical fallacy of affirming a consequence by saying that a fascist state has a police force, Britain has a police force, therefore Britain is a fascist state? The hon. Gentleman's argument sounds like that.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General 10:00 am, 13th January 2005

There are basic principles of law that have existed in this country for a long time; exceptions are sometimes made—for example, a person has a privilege against self-incrimination, and a person who is not under investigation has no duty or responsibility to answer questions asked by a person in authority, except in a number of set provisions, such as when filling in a tax return. It is therefore unusual to demand of someone who is not under investigation—it is worth bearing in mind that some pretty draconian penalties are provided in the Bill—that unless they tell everything they know about someone else or his business affairs, they will go to prison for a long time. That is the stick that is being waved at them. In a free society, we have consistently avoided doing that, even though I accept that those exercising power in the state may find it convenient to have such a power. The Minister tells us that that power will not be abused, and I know that she speaks with complete and transparent honesty when she expresses that view. However, it is not a light matter that we will implement in this clause.

This morning, I heard on the radio about Prince Harry getting into trouble for wearing fancy dress. It made me laugh slightly that a huge amount of noise was made about that, when it seemed to me to be, at worst, a matter of bad taste for which an apology should be readily accepted, yet there has been very little comment about the fact that in a Committee such   as this we are implementing exactly the sorts of powers that that sort of state would happily have taken to itself.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

Will the hon. Gentleman keep quiet for a moment?

I shall now turn to new clause 16, which deals with the question of privileged documents and is probing in its intent. When I read the Bill, it was not clear to me how disputes in respect of privileged documents would be resolved. The proposed new clause therefore puts forward a way in which that might be done. I will be grateful to hear from the Minister whether that mechanism might be helpful, or whether she can reassure the Committee that there will be a tried and tested procedure that can be adopted to resolve such issues. I am sure that other members of the Committee will agree that that is important. The Government have been consistent in the past in protecting privileged documents and communications, and there should therefore be no difficulty over that matter. I hope that the Minister can provide some reassurance on that point.

I apologise to the Committee that the requirements of going to a funeral mean that I cannot stay. I am sorry if some members of the Committee felt upset at my comments, but we should not blindly take powers because it seems convenient to do so, without constantly remembering why it is that over the past 150 years Parliament has consistently prevented the Government from getting that type of power. It is the fact that we have done that which makes us the sort of country, with the sort of freedoms, in which we live today. If we just get rid of those freedoms at the stroke of a pen without carefully considering the implications, we are in danger of creating a very different kind of society.

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

I am sorry that the hon. Gentleman has to leave but I would like to say something as he goes. He made a number of comments about our proposals being fascist. I remind him that the requirement on a person subject to a disclosure notice to answer questions mirrors provision in section 2 of the Criminal Justice Act 1987, which was introduced by a Conservative Government. We must be careful about using the sort of language he used, because it does not add much to discussion of a serious subject.

Photo of Vera Baird Vera Baird Labour, Redcar

My hon. Friend will be aware that neither the Law Society or the Bar Council nor the Justice and Liberty organisations take anything like the view expressed by the hon. Member for Beaconsfield. All those bodies support the introduction of the powers, although they have some reservations.  

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

I thank my hon. and learned Friend. Scrutiny of Bills is important, and raising tension and emotions through scaremongering is not helpful to a sensible review of legislation.

Much of organised crime relies on business transactions and facilitators to manage its finances and provide transport and storage. Some people and organisations involved on the periphery of such transactions are entirely legitimate or have only a minor involvement in the group's criminality, but unfortunately—or fortunately for law enforcement—have information about the group's operation, which we would try to access. There is seldom enough evidence to charge those individuals, nor is there any incentive for them to share information with the police. Although those who come forward with information useful to the prosecution can be compelled to give evidence in court, they are under no obligation to answer questions.

The Serious Fraud Office and Assets Recovery Agency rely on their use of disclosure notices to require individuals to produce documents and answer questions in their investigations. The amendments would prevent prosecutors and investigators from asking questions relevant to the investigation and to the specified documents. However, a limited ability to ask questions would be an important addition for investigating organised crime.

Powers already exist to seize and require the production of documents. This Bill is intended to provide added value and deal with the fact that existing powers are hampering investigations and the legitimate pursuit of criminals. The notices would add a limited ability to ask questions of the person who has the information. In many investigations there is a reasonable expectation that there is relevant evidence, but it will not necessarily be clear which documents contain that information or what those documents mean. The Serious Fraud Office finds such powers invaluable in its investigations and has been able to use them fairly. We are providing the same safeguards against self-incrimination to protect those questioned. Many organised crime investigations involve similarly complex transactions, and that is why the power should be extended beyond serious fraud to all serious crime.

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

One thing the Minister has not mentioned, which is important to our understanding of the need for the provisions, is that worse than simply not wanting to co-operate with the police, the person involved will often be intimidated by the organisation about which he holds information. It is therefore necessary to have a counterbalance to that.

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

I absolutely agree, and that is why in other areas of the Bill we have addressed issues of protection, not only for witnesses in trials, but for those disclosing information who may be subject to coercion and intimidation.

Amendment No. 211 would prevent any document or information from being disclosed when there is any duty of confidentiality. There are tried and tested definitions of what confidential material should not be available to investigators, and we have excluded that   material as outlined in clause 58, which includes confidential personal business records and confidential legal, medical and journalistic material. The amendments would exclude any potentially confidential material and drastically limit the effectiveness of the notices. The proposed new clause rightly raises the need for a process to separate privileged material from material that can legitimately be seized, and could apply to materials seized under any power.

Clause 60(9) provides that professionally privileged material cannot legally be seized under a clause 60 warrant. Such documents can be taken only by virtue of the powers in part 2 of the Criminal Justice and Police Act 2001, which apply to the disclosure notices in part 2 of this Bill as well as other search and seizure provisions. Any such seizure would be subject to the same safeguards as seizures under other powers. For instance, the Act and associated codes of practice provide for the material to be seized and stored securely by the investigators separately from other material until it can be examined. They provide for anyone with a reasonable interest in the material to be present when it is examined to determine whether it is privileged. They also provide for any party with an interest in the material to apply to a judge for its return if they believe that it is being retained unlawfully.

We believe—as I hope the Committee will—that the provisions already provide an adequate framework to ensure workable, but effective safeguards for separating such material, and I hope that hon. Members will not press the amendments or the new clause.

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

The earlier exchange was unfortunate because it polarised the Committee on a serious issue in a way that perhaps did not contribute to our best understanding of it. There is, of course, a very serious issue in granting such extraordinary powers to the state, and the hon. Member for Beaconsfield was right to question that and to put the Committee on guard against any arbitrary extension of powers. Equally, however, we must clearly understand the context in which those powers will be used. As the Minister rightly said, they form part of previous legislation on serious fraud, which was proposed by her party and introduced by the previous Government.

My main priority in this part of the Bill is to get the balance right and establish the right context for the use of these extraordinary powers. That is why the earlier discussion was so important to me. Unless we clearly define the offences that fall under these powers and the safeguards on their use, we risk giving the state a quite extraordinary power to intrude on personal liberties. I think that most members of the Committee would not want to extend the powers in that way.

Photo of David Cairns David Cairns PPS (Malcolm Wicks, Minister of State), Department for Work and Pensions

The hon. Gentleman is making his case in a serious and measured way. Earlier, he made a jocular reference to the Stasi and my hon. Friend the Member for Hemel Hempstead, and we all laughed, having understood it for the joke that it was intended   to be. However, does he not understand the anger that Labour Members feel when we hear the sort of casual references to the fascist state and fascism that the hon. Member for Beaconsfield bandied about, particularly as we approach holocaust memorial day? Such allegations cannot be casually bandied about, no matter what reservations people have about the provisions. Words such as fascism and fascist state should not be employed in this context. Will the hon. Member for Somerton and Frome therefore join my colleagues in deprecating such remarks?

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

I am grateful to the hon. Gentleman. I have given him the opportunity to express himself. As I said, the earlier exchange was unfortunate, but let us move on and deal with matters in the right context.

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

The hon. Gentleman can chunter as much as likes from a sedentary position, but I will express myself in the way that I choose, not the way that he chooses.

Many of us would be more at ease about the clause if the limitations on the use of the powers were expressed more explicitly. The Minister has given us a lot of assurances on this and previous amendments, but they have often been assertions rather than limitations in law. That is the difficulty that many of us have with the proposals.

Photo of Geoffrey Clifton-Brown Geoffrey Clifton-Brown Conservative, Cotswold

I thank the hon. Gentleman for calming the tone of the discussion. Is not the issue that free and libertarian states should never take any power unless it is necessary and expedient to do so? Is not there a danger that it can take one power, then another and another until, all of a sudden, the balance has shifted considerably? That is precisely what we are considering here—whether the balance is correct.

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

The hon. Gentleman is right to draw attention to the incremental accretion of powers, of which Parliament, in particular, should be very wary. He is also right to say that the balance that must be struck is crucial to the equation.

Photo of Mr Tony McWalter Mr Tony McWalter Labour/Co-operative, Hemel Hempstead 10:15 am, 13th January 2005

I am grateful to the hon. Gentleman for the way in which he has calmed the debate, after the hotter tones heard earlier. The debate might have a beneficial effect by ensuring that the operational directives given to members of the Serious Organised Crime Agency will make it clear when people are not under investigation and when they are. It might be of some use in that context.

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

I am grateful to the hon. Gentleman for that comment. My concern, to be absolutely open about it, is that codes of conduct are ephemeral and capable of change. Acts of Parliament are capable of change—these days, we sometimes revise Acts of Parliament before they have even been implemented—but at least Parliament acts as a safeguard. The same is not true of the way in which the statutes that we pass are operated by the agents of the state. That is why, when giving powers, we must be so careful to ensure that they are circumscribed to ensure the safety and liberty of the citizens of this   country. That is a serious measure, which should not require any form of badinage in the Committee, but does require our serious attention. I hope that we are now focused on the provisions before us.

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

We keep hearing the same words—balance and safeguards—from the hon. Gentleman and from Conservative members of the Committee. Genuine concerns have been expressed that those words are not applicable to the clause as it stands. The hon. Member for Hemel Hempstead mentioned that the provision applies to people under investigation, but the whole point of disclosure notices is that their remit is much wider than those under investigation. In fact, my personal concerns are about those who are not directly under investigation—the ancillary companies and individuals who might be sent a notice out of the blue. They deserve protection as much, if not more so, than the person being investigated.

The points that have been made are cumulative. There is no grading of the importance of the crime involved: in practice, anyone is subject to the provisions, even though a casual observer may have thought that the Bill was about serious organised crime. We have noted no discernment regarding the rank of SOCA members of staff who can operate many of the provisions. I therefore concur with many of the points made by my hon. Friend the Member for Beaconsfield.

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

May I take it that the hon. Gentleman disagrees with Liberty, a group that has on many occasions disagreed with Government policy on human rights? Liberty says:

''These powers are already enjoyed by the Serious Fraud Office and will now be extended to the police, SOCA, and Customs and Excise. Liberty accepts that there is scope for compulsory questioning and production powers to be used. It is common practice in company law, and when dealing with regulatory offences, to require responses to questioning.''

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

I make two points in response to the Minister. The first, which I addressed in my initial remarks today, is that the provisions under the Enterprise Act 2002 relating to the SFO and those under the Companies Act 1985 relating to DTI investigations have to be put in a different context from the reality in which those investigations are put into practice.

Secondly, I was making a specific point about the rank of the individuals who can operate the provisions. Clause 56(3) refers to

''a member of the staff of SOCA'', not to a member of staff of any rank.

Photo of Vera Baird Vera Baird Labour, Redcar

The explanatory notes state—correctly, I believe—that the Assets Recovery Agency

''has the power to compel individuals to co-operate with investigations by producing documents and answering questions.''

What rank do the ARA people have to have?

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

I do not know. Perhaps the Minister can answer. I am looking at the Bill before us and the gap that I perceive in its provisions.

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

Does the hon. Gentleman also disagree with Liberty on this issue? Liberty states:  

''One of the features of SOCA is the flexible nature of its staff's work. Chapter 2 (in particular clauses 38–44) allows for SOCA staff to have the full powers of police constables, immigration officers, and customs and excise officers designated upon them by the Director General of SOCA. This is understandable, as SOCA will cover a variety of areas currently split between separate agencies. It is important that SOCA staff, when designated these roles, are accountable in the same way as those who normally carry out the function.''

We emphasised that and resisted amendments in that respect on Tuesday. Surely what is important is that a member of SOCA who is involved in carrying out the functions should ensure that he has the designated powers that are appropriate and is therefore accountable in the same way as someone who may be called a constable? The powers, not the person's title, are what is important.

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

First, we discussed this on Tuesday. Secondly, I do not regard myself as a representative of Liberty. Thirdly, we did not discuss disclosure notices and the person who is an ''appropriate person'' for the purposes of subsection (3). I think that I have made our position quite clear. Subsection (4)(b) is very broad, referring to the requirement to

''provide information with respect to any such matter as is specified in the notice''.

Presumably, it does not even have to relate to the investigation, which is at least specified in paragraph (a).

Amendment No. 211 relates to duties of confidentiality. We tabled the amendment because we have serious concerns that non-directly connected parties—third parties—who receive notices and who are asked to produce documents or speak to them may have contractual duties of confidentiality in respect of the documents in question. That requirement might be quite fair in relation to the accused, but it could have a significant impact on the business of a third party. Our argument is not that in no circumstances should the documents have to be produced, but that, as at present, the question should have to be put to a court to decide.

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

I am sorry to take up the Committee's time, but it is important to correct misinformation. The hon. Gentleman tried to make a point about subsection (4)(b). The phrase ''such matter'' in that subsection refers back to

''matter relevant to the investigation'' in paragraph (a). They stand together.

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

If so, I suggest that the drafting does not work. Paragraph (a) refers specifically to matter that is ''relevant to the investigation'' and paragraph (b) is not clear. It reads:

''provide information with respect to any such matter as is specified in the notice''.

It does not say that the matter is relevant to the investigation. It may be a minor drafting point. If the Government were prepared to put ''relevant to the investigation in subsection 4(b)'', I would be much happier.

Returning to amendment No. 211, I share the concerns that were expressed by my hon. Friend the Member for Beaconsfield. I shall end there, on the   basis that my hon. Friend the Member for Sutton Coldfield (Mr. Mitchell) wants to speak to new clause 16.

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

This has been a most interesting and sometimes enlightening debate. As the Minister said, there is a substantial difference across the Committee, which was well ventilated and understood on Tuesday. The Opposition are very concerned about the way in which powers are to be given to SOCA officials willy-nilly and there is no doubt that we will come back to the issue on Report and in the other place. There is also a problem with the ranking structure, as my hon. Friend the Member for Huntingdon pointed out. There is nothing between the Government and ourselves on that—the Minister said on Tuesday that it was not possible to clarify the matter at this stage, but that it would be in the future. We shall return to that point, too.

I wish to speak briefly to new clause 16. I sensed that the Minister had some sympathy with our argument. The purpose of the new clause is to provide a means for resolving disputes about whether a specified document is subject to privilege. At present, as she conceded, there is no procedure for dealing with the inevitable occasions on which such disputes arise. The clause is modelled on schedule 1AA(6) of the Taxes Management Act 1970. The amendment is clearly sensible. The right not to disclose legally privileged documents and so on is correctly included in the Bill—in clause 58—yet there is no mechanism for dispute resolution. Without doubt, disputes will arise regarding what documents are covered by the exemption. It must be right, therefore, for there to be a statutory device whereby disputes as to what information is legally privileged can be resolved. I hope that the Committee agrees.

Finally, the hon. and learned Member for Redcar (Vera Baird) made a good point about the Criminal Justice Act 1987. I think that, of the members of this Committee, only you, Mr. O'Brien, the Government Whip and I were MPs at the time—I voted for the Bill and the Government Whip voted against it. The hon. and learned Lady's point was fair, and my hon. Friend the Member for Beaconsfield, who made such pertinent comments, will, no doubt, read the Hansard report and decide whether he wishes to re-raise the matters later.

Photo of Vera Baird Vera Baird Labour, Redcar

I did not talk about the powers of the Serious Fraud Office. The hon. Gentleman is right to say that I am far too young to have been in Parliament when those provisions were enacted. What I did mention was the Assets Recovery Agency, which was set up under the Proceeds of Crime Act 2002, and came into force in 2003. I have to admit that I would not have remembered this if it had not appeared in the explanatory notes, but that agency does have the same powers. It is not even a police agency, so if there are no problems with the application of this kind of regime in another agency that is not confined to police, perhaps some of the hon. Gentleman's concerns can be assuaged by looking at the work of ARA.  

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

I am grateful to the hon. and learned Lady for clarifying the point, and I shall reflect on what she has said when I read it in Hansard. Of course, I realise that she, the Minister and the other ladies on this Committee, are far too young to remember the incidents to which I referred, but which the Government Whip and I are old enough to remember.

There is an important point of which the Committee is seized. We are dealing with substantially increased powers, and all of us wish to take care that the intrusion of the state into our lives and our rights should be carefully thought through before we allow the accretion of such powers. All of us are striving to get the balance right. As the hon. Member for Somerton and Frome made clear in his final remarks, that is what the debate is about.

As I did not move the amendment, I cannot withdraw it, but the Opposition do not seek to press it.

Amendment negatived.

Clause 56 ordered to stand part of the Bill.

Clauses 57 and 58 ordered to stand part of the Bill.