Criminal Justice and Police Bill

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Mr. Clarke: 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.

Mr. James Gray (North Wiltshire): That is a bit rich coming from you.

Mr. Clarke: 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.

Mr. Heald: Will the Minister give way?

Mr. Clarke: 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.

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

Mr. Clarke: 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.

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

Mr. Clarke: 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.

Mr. Crispin Blunt (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?

Mr. Clarke: 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.

11 am

Mr. Heald: 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.

Mr. Clarke: 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.

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Prepared 6 March 2001