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Mr. Grieve: To save the Minister time and trouble, after rereading this particular bit of my ingenuity, it seems that he is completely right.
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Mr. Ainsworth: At this point, I ask the hon. Gentleman to withdraw the amendment.
Mr. Grieve: I was reading the text of the search and seizure warrants against the previous text. The Minister properly answered my question, because the measure is plainly included elsewhere. I have reread the clause and I do not see any distinction that reduces the value of the requirement that one cannot particularise, although I may have thought that there was one when I drafted the amendment. In those circumstances, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. Ainsworth: I beg to move amendment No. 291, in page 197, line 25, after 'constable' insert 'or a customs officer'.
The Chairman: With this it will be convenient to take Government amendment No. 292.
Mr. Ainsworth: The amendments will enable Customs officers, as well as constables, to use search powers when a search and seizure warrant has been made by the court in relation to a confiscation investigation or a money laundering investigation.
Customs officers already have such a power that can be used for confiscation investigations under the Drug Trafficking Act 1994, the Proceeds of Crime (Northern Ireland) Order 1996 and the Criminal Justice Act 1988, as amended. They have experience in exercising search warrants during investigations into the proceeds of criminal conduct. The Government want them to keep the powers, and the amendments are necessary to ensure that they do.
Amendment agreed to.
Clause 341, as amended, ordered to stand part of the Bill.
Clause 342
Requirements where production order not available
Amendment made: No. 292, in page 199, line 7, after 'constable' insert 'or a customs officer'.—[Mr. Bob Ainsworth.]
Clause 342, as amended, ordered to stand part of the Bill.
Clause 343
Further provisions: general
Question proposed, That the clause stand part of the Bill.
Mr. Hawkins: I want to explore some of the provisions in the clause, and especially what is not covered by the search and seizure warrant. Over recent months and years, we have seen unfortunate cases in which a particular individual—I shall not give him further publicity because he has been well publicised by the tabloid press, and even occasionally the
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broadsheets—has raided dustbins outside certain firms of solicitors. He has obtained documents, even if they had gone through a shredding machine and had to be stuck back together, and provided them to scandal sheets and lawyers for the other side for remuneration. There are serious worries that will be shared by the Minister's advisers about the way in which the edges of legal professional privilege have become blurred.
Obviously, no Minister of any Government will condone the theft of private and confidential information. It is often said that this country has the best broadsheet press and the worst tabloid press in the world, and Labour Members may agree with that. Yesterday, the editor of one of our tabloids was all over the media saying that he was allowed to breach all confidentiality regulations relating to a document because, in his words, it was left on a tube train. We must take care not to blur the edges, as we all want the legislation to be effective. Subsection (1) states that the name and address of a lawyer's client is an exception: we must be sure that that does not open the gates a little wider than previous legislation has done.
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I am not claiming that the floodgates will be opened by subsection (1) making an exception with regard to
''material containing only the name and address of a lawyer's client.''
However, I do not recall having come across that formulation in previous legislation. If the Minister states that the formulation has previously been used, I would be happy if he could point to legislation that contains it.
I agree with subsection (3), which states that
''material held with the intention of furthering a criminal purpose is not privileged.''
I accept that there are substantial protections in subsection (4), which states:
''A search and seizure warrant does not confer the right to seize excluded material.''
Subsection (2) appears to be simply a restatement of existing law. However, I have concerns about the phraseology of subsection (1), and I want the Minister to address them in detail.
Perhaps the hon. Member for Lewes shares my concerns. He is always concerned to protect the liberty of the subject, and I know from our discussions that we take the same approach to certain public issues.
Will the Minister address my concerns?
Mr. Ainsworth: I fail to see what this has to do with Benjy the Bin, or the behaviour of tabloid editors.
The hon. Gentleman was not present when the Committee debated amendments Nos. 550, 555 and 560. I gave a commitment to look at the interaction between clauses 347, 343 and 350. [Interruption.] Perhaps the conversation that is taking place is informing him about those discussions. They addressed the substantive point in relation to subsection (1) and, as he has no problems with any other part of the clause, I hope that that will satisfy him.
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Mr. Hawkins: I apologise to the Minister. As he has surmised, my hon. Friend the Member for Beaconsfield was informing me about that part of the Committee's proceedings.
The Minister gave further publicity to the individual to whom reference was made. I hoped that he would not do that.
With regard to the substantive point that I raised, I am happy that the Minister has said that he will discuss it with his advisers.
Question put and agreed to.
Clause 343 ordered to stand part of the Bill.
Clauses 344 and 345 ordered to stand part of the Bill.
Clause 346
Disclosure orders
Mr. Grieve: I beg to move amendment No. 556, in page 200, line 38, at end insert
'or a civil recovery investigation'.
The Chairman: With this we may consider amendment No. 557, in page 200, line 42, leave out from 'investigation' to the end of line 3 on page 201.
Mr. Grieve: We have discussed civil recovery proceedings, but I hope that the Committee will forgive me for raising them again.
The clause deals with disclosure orders, and as the Minister has rightly said, they are among the most intrusive investigative powers that the legislation will introduce.
Mr. Ainsworth: I said that they were more intrusive.
Mr. Grieve: Very well, ''more intrusive'' rather than ''most intrusive.''
The amendments would remove the power with regard to civil recovery proceedings. They would confine it to money laundering and confiscation.
When we discussed criminal recovery proceedings, it was explained that they were proceedings that could be brought by the state in a civil court to recover property. As we examined bit by bit the powers that the state would have in such proceedings, it became apparent that there would not be a level playing field between the state and the individual against whom the civil recovery proceedings were brought. The state would have a series of weapons in its armoury that, unlike in conventional litigation between citizens, the other person would not have. The other person could not serve disclosure orders on the director of the type that the director could use under the clause.
I am bound to raise with the Minister the public policy grounds on which it is thought that the director should not have to avail himself of the ordinary rules of court of, for instance, serving interrogatories and receiving the court's assent to that if he wishes someone to answer questions. I want him to explain the power that we are giving in civil recovery proceedings to run around compelling people in non-criminal investigations to answer questions. That is
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why we tabled the amendment. I am not willing to let the clause be enacted without his justifying and explaining why he considers that such powers are required in proceedings that have nothing to do with criminal justice but relate to the civil recovery powers that the Bill will confer on the state.
Mr. Ainsworth: The clause allows a judge to make a disclosure order, which would compel a person who is the subject of an investigation to answer questions, to provide information or to produce documents. Under subsection (1), only the director may apply to a judge for a disclosure order. As the provisions are drafted, disclosure orders may be made in respect of confiscation and a civil recovery investigation, but not money laundering. The key reason for restricting disclosure orders to confiscation and civil recovery is that the Government have decided to limit the use of disclosure orders in England, Wales and Northern Ireland to the director of the agency. The director is a specific post set up and operated exclusively under the Bill.
The director will not have a role in the investigation of money laundering offences or in any other criminal offence. It is a consequence that the disclosure order will not be available for the use of money laundering investigations. That restriction of access mirrors the restriction of the disclosure order under the Criminal Justice Act 1987, which is available only to the director of the Serious Fraud Office. The amendment would further restrict the granting of disclosure orders to confiscation investigations undertaken by the director. Those confiscation investigations carried out by the usual prosecutor will not have access to such powers.
We anticipate that the information obtained as a result of the making of a disclosure order by a judge may be of significant assistance to the director in determining whether a particular property may be recoverable and therefore whether to initiate civil recovery proceedings in a particular case. Whether it is appropriate to apply for a production order in a particular civil recovery investigation will clearly depend on the information that is already available to the director, including that passed to him by law enforcement agencies. It will also be a matter for him to judge whether a production order is the best way of obtaining information.
In our view, information obtained through a disclosure order may help the director to establish a good arguable case that he requires to obtain an interim receiving order. In some cases, it will be essential for him to do that. The order may also provide information that helps to establish that a stronger case is needed for the substantive recovery hearing. If the director did not have access to a disclosure order for civil recovery investigations, his investigatory powers would be considerably weakened.
Although disclosure orders will not be the director's first port of call, we envisage that there will be circumstances in which they will provide information that is absolutely vital to the building of a case for bringing civil recovery proceedings. To remove the
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possibility of a disclosure order would therefore risk prejudicing the effectiveness of the entire civil recovery proceedings under the Bill.
The order is, of course, a potentially intrusive power. When we were speaking about production orders, the hon. Gentleman's explanation of disclosure orders was a little wider than mine. A disclosure order is a more intrusive power, and the Bill therefore contains a number of conditions to ensure that it will be used when appropriate and proportionate to the investigation. Surely that is the argument.
We will discuss these issues further under clause 347. However, one of the requirements for making an order is that there are reasonable grounds for believing that the resulting information is likely to be of substantial value to the investigation. We do not anticipate that disclosure orders will be sought unless other powers—such as production orders—have already been sought or would demonstrably not be appropriate or sufficient to obtain the required information. That would be one of the points that the judge would be expected to consider, in respect of proportionality, before approving a disclosure order.
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