Serious Organised Crime and Police Bill – in a Public Bill Committee at 9:10 am on 13th January 2005.
I beg to move amendment No. 99, in clause 55, page 29, line 29, after 'offences', insert
'which appear to the investigating authority on reasonable grounds to be of sufficient seriousness to warrant investigation pursuant to this Part'.
Welcome to the Committee, Mr. O'Brien. We move now to the widening of the powers of coercion and the investigatory powers of the Director of Public Prosecutions and others. It is well understood—I certainly understand—why exceptional powers are extended to the investigation of serious fraud, and the power to compel a witness to produce documents and answer questions has existed for some time. There are equally strong arguments for extending the same powers to the work of the new agency and to other serious organised crime cases. I would not quarrel with that; such powers are exceptional but perhaps necessary to ensure that the evidence is there. However, it is reasonable to suggest that there should be some limit to the extension of such extraordinary powers.
The amendment would require the investigating authority specifically to consider whether the suspected offence was sufficiently serious to warrant the use of compulsory questioning. In other words, it introduces a threshold determination, which must be made before the powers are used. It is necessary for clause 55 to extend the powers over quite a wide range of offences because organised crime covers a wide range of offences, but that serves only to enforce the need for a threshold of seriousness. One would not want these powers to be used in an arbitrary way, and I am sure that that is not the Minister's intention. Including the safeguard in the amendment would be a sensible precaution, and I commend it to the Committee.
As we are coming to what to my mind is a very important part of the Bill, I shall take this opportunity to say a few words about the principle of the amendment moved by the hon. Member for Somerton and Frome (Mr. Heath). I apologise to the Committee for having to be absent after 10 o'clock as I have to go to a funeral.
The hon. Gentleman is right to emphasise that the powers should be used only in serious cases. I have considerable anxiety about disclosure notices generally. They are draconian in scope and, as we will see when we consider the form of the notices in slightly greater detail, they involve not only the production of documents but the power to compel people to answer questions. The only other setting in which they could be compelled to answer questions is in a court of law when giving evidence from the witness box.
In this country, we have consistently shied away from giving such powers; we do so only for exceptional reasons. They are normally given only in cases of serious financial fraud and cases involving the operation of the Companies Acts, and it is controversial that it is so. One of the justifications for doing so is generally the belief that when dealing with a large financial organisation, questions will be asked of individuals who are intimately concerned with its operation.
In the Bill, however, such powers are being extended to the general criminal law. That worries me, and I am unconvinced by the scope of some of the powers. The operation of the Serious Organised Crime Agency is somewhat nebulous around the edges, and we will be giving powers to ordinary criminal investigators that the police would not have. The only way in which the police can obtain answers to questions is to issue a witness summons. The point is unusual, but it can be dealt with in a number of ways. We can certainly try to deal with it in the way suggested by the hon. Gentleman, by emphasising that we are dealing only with cases of ''sufficient seriousness''. Later this morning, under other amendments, we could consider in detail whether the powers that we are giving to SOCA are too wide.
All that bothers me. I am grateful to the hon. Gentleman for having raised the issue, and I wait with interest to hear what the Minister has to say.
I very much agree with my hon. Friend. The powers in the clause and chapter 1 already exist in the Companies Acts, such as the power to go to the Department of Trade and Industry, and the Enterprise Act 2002 gives similar powers to the Serious Fraud Office. The implication is that those powers have been aimed at business-type fraud, and it is probable that we have not heard an outcry about them because those who have been subjected to them have tended to have the money to represent themselves, or their companies have paid for representation. Broadening the powers towards the whole population through the general criminal law is a different issue, and we need a different way of looking at it.
No benchmark exists. The Bill deals with serious organised crime, but the vast majority of criminals to be subjected to the powers under chapter 1 will have had nothing to do with serious organised crime. At a time when the law fraternity, Liberty and many other organisations are highlighting the way in which the Government have been cutting back on legal aid and therefore removing people's right to representation, that is a great concern. In this clause, we see their right to silence being taken away. I have other serious concerns, which will come out during our debates on chapter 1.
As Opposition Members have questioned the purpose of the disclosure powers, I shall remind the Committee why we are discussing the issue. On Tuesday, we had extensive discussion about the ways in which organised criminals operate. They might be involved in a variety of activities, from tax evasion and fraud to trafficking drugs or people. Ultimately, they wish to protect their criminal assets and, like other entrepreneurs, they seek to diversify.
We have consulted widely on disclosure powers. We recognise that they are important and serious, and that the way in which they are used has to be safeguarded. They should be used in investigations into serious offending. A number of people, including the Law Society, have raised concerns about the potential for the notices to be used too widely. We share that concern but have made it clear on a number of occasions that the notices will be appropriate only in relation to serious crimes. That is why we have restricted the offences in relation to which they might be used to those listed in clause 55, the majority of which are always serious. They are: trafficking in drugs, money, people or arms; counterfeiting; intellectual property theft; blackmail; organising prostitution; terrorist funding offences; and certain tax and excise offences. Specialist prosecutors, who will have the power to authorise disclosure notices, will not issue them unless they believe that the offending is sufficiently serious to justify them, and the Attorney-General will produce guidance.
I should be grateful if the Minister spent a little time explaining who is to be a special prosecutor and what the role will involve, so that the committee knows the scope of those who will be able to issue the orders.
I can cover that in more detail when we discuss the next group of amendments. As I said on Tuesday, we have been working with the Attorney-General to identify a cadre of prosecutors who will work closely with the Serious and Organised Crime Agency—in some cases, they will work in the same location as SOCA staff—and who will be authorised to issue disclosure notices. The Attorney-General will produce guidance on all issues affecting disclosure that will involve his prosecutors.
No, they would not be SOCA employees. We had that discussion on Tuesday, and we are going rather wider than the amendment. On Tuesday, we discussed preserving the independence of the prosecuting function. That is why the prosecutors delegated to carry out the task will be under the authority of the Director of Public Prosecutions. Having said that, because they will work closely with SOCA staff, some of them might be based in buildings alongside SOCA staff. However, I think that I made the lines of accountability clear on Tuesday—prosecutors will not be accountable to the director general of SOCA. Prosecutors will not issue disclosure notices unless they believe that offending is sufficiently serious to justify them and, as I have said several times, we will issue guidance under which they will operate. That will make clear what factors they should take into account when considering seriousness. Therefore, we do not think that it is necessary or appropriate to specify them in the Bill, and I ask the hon. Member for Somerton and Frome to withdraw the amendment.
I am grateful for the support of the hon. Members for Beaconsfield (Mr. Grieve) and for Huntingdon (Mr. Djanogly) on this serious matter. I have listened carefully, and I have no objection to the Minister's stated intention. My problem lies in the fact that nothing in what she has said is inconsistent with the proviso that I propose to add to the Bill. She relies on the policy of the Director of Public Prosecutions remaining, or even being initiated, in the form that she requires. Although she says that she is referring only to cases of serious organised crime, that is not what the statute says. We have to rely on what the statute says, not on the intentions of Ministers when they propose measures.
I draw the Minister's attention to the list of offences in clause 55 to which the chapter applies. She said that those were serious cases. In most cases, they are serious offences, but let us not be foolish. For instance, the fraudulent evasion of duty under clause 55(1)(d) can deal with serious organised crime organising shiploads of cigarettes, but it can also apply to the cross-channel ferry driver and tourist who has come back with a little too much in his boot.
The hon. Gentleman is quite right to draw attention to the fact that tax and excise fraud can be a very serious matter. We know that organised crime gets involved in those activities, and we estimate the cost to the UK to be billions of pounds.
The Director of Revenue and Customs Prosecutions will draw up strict guidance on the use of disclosure notices by Her Majesty's Revenue and Customs. Our intention is to restrict the use of notices to serious organised crime investigations rather than low-value fraud cases. The Paymaster General has announced a review of the powers available to Her Majesty's Revenue and Customs, and we will await the outcome of that review before we implement disclosure notices for the tax and excise fraud offences. I hope that that gives the hon. Gentleman some reassurance that we do not want to create a huge catch-all for such offences and are mindful that notices should be used proportionately.
That gives me reassurance, but it reinforces my view that the concerns that the hon. Lady is expressing as a Minister of the Crown are exactly those that I am expressing as an Opposition member of the Committee. I want to see them framed within the clause to make sure that her assurances are given weight in law. I find no discontinuity between what I suggest as an addition to the Bill and her assurances on how the Bill will work.
Clause 55(1)(e) refers to the Theft Act 1968 and false accounting. Practically every crime that has a financial aspect may involve false accounting. An extraordinarily wide web of offences is therefore brought under the draconian provisions on disclosure. I understand the Minister's intention perfectly well, but I hope that she will understand that if those intentions are to be laid out in statute, a threshold requires to be built into the clause. Otherwise, we will be entirely reliant on the advice at any given time of the Director of Public Prosecutions or other prosecuting authorities. They will have the statutory power to use the disclosure capacity in a wide range of cases. For those reasons, I believe that the amendment is a necessary addition.
Question put, That the amendment be made:—
The Committee divided: Ayes 6, Noes 8.