Proceeds of Crime Bill

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Mr. Boris Johnson (Henley): I accept the hon. Gentleman's point that the clause is linear, but it is none the less otiose and unnecessary. I cannot understand why Parliament feels it necessary to inform the director that information that he obtains in the course of his functions may be used in connection with his functions. What kind of a man is this director who is so silly as not to assume that information obtained in the course of his functions may be used in connection with those functions? What—

The Chairman: Order. I remind the hon. Gentleman that he is making an intervention, not a speech.

9.30 am

Mr. Stinchcombe: Let me give the hon. Gentleman a small lesson in public law. When Parliament creates posts such as the director's, it must tell the postholder exactly what he can and cannot do. The director can act only in accordance with Parliament's directions. He can exercise only the powers and duties that we give him. Powers and duties make up his functions. He can perform those functions only for the purposes for which we empower him to do so.

Mr. Hawkins: Will the hon. Gentleman give way?

Mr. Stinchcombe: If the hon. Gentleman will forgive me, I shall not give way. I want to finish my answer to the hon. Member for Henley.

That informs the doctrine of ultra vires. If the director acts outside the four corners of the powers and duties that we have created, he exercises them unlawfully and can be challenged by judicial review.

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That is why we have to give him the powers, and why we are giving them in this clause.

Mr. Hawkins: The hon. Gentleman is, as he puts it—some might say charmingly, and others patronisingly—giving a lesson in public law to my hon. Friend the Member for Henley. Will he use his enormous expertise in public law to tell me whether, in his understanding of the doctrine of statutory interpretation, if the clause did not exist, other clauses in the Bill would be considered and the statute would be interpreted to mean that the director could use his powers as the clause suggests?

Mr. Stinchcombe: It is a tremendous pleasure to get a lesson in patronisation from the hon. Gentleman, who is clearly an expert on the subject. I am more than willing to enter into a debate on our respective reputations and experience in public law.

The courts might interpret the statute to imply that the director can use the information. However, it seems to me that there is no problem in making that clear, particularly as we can thereby clarify precisely how the information would come to him and how he might use it. That is why the words

    in connection with the exercise of any of his functions

are so vital. They set the threshold and parameters for both those points.

Mr. Carmichael: I hesitate to enter into the debate, which seems to have lost some of the niceness that we have enjoyed until now. As a Liberal, that is something I deeply regret.

I hope that the Minister will explain what the clause adds to clause 2(3), which says:

    The Director may do anything (including the carrying out of investigations) which he considers is—

    (a) appropriate for facilitating, or

    (b) incidental or conducive to,

    the exercise of his functions.

I do not believe that the clause adds anything to that.

My primary concern is that many of the powers that we gave to the director of the Assets Recovery Agency were swingeing powers, but they were not going to be used for criminal prosecutions. However, now we learn that there is a danger that prosecution could be introduced by the back door. I commend to the Minister the introduction of an interpretation of the clause that states that that should be an exclusive power.

Mr. Ian Davidson (Glasgow, Pollok): Could the hon. Gentleman clarify why it is a danger that evidence of criminal behaviour might be passed on to the prosecutor so that action can be taken? I should have thought that we were in favour—

The Chairman: Order. No, he could not, because that would not be in order.

Mr. Carmichael: I take your guidance on that, Mr. Gale. I suspect that we should more properly debate that under clauses 423 and 424.

Mr. Wilshire: I want to thank the hon. Member for Wellingborough (Mr. Stinchcombe). In all my life, whenever I have asked a lawyer to explain something,

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I have received a whopping great bill. On this occasion, I received some very useful free information from a lawyer and it would be unkind not to acknowledge that. I assume that he fears that the Minister may fall down the stairs and be indisposed. If such a thing happened, the Whip would remember that the hon. Gentleman had given me a good answer to my questions. Perhaps it was a bid in the—we hope—unlikely event that the Minister should come to grief.

Mr. Ainsworth: What on earth is in the tea this morning? The first point was covered by my hon. Friend the Member for Wellingborough. The director will not be as he is viewed by the hon. Member for Henley, who asks what kind of man he is.

Mr. Johnson: Or woman.

Mr. Ainsworth: He or she is effectively a statutory body and cannot behave as a citizen, being able to use only the powers that we give him or her. A local authority acting outside the powers conferred on it by an Act of Parliament would be acting ultra vires. The same would apply to the director. We must define what the director can and cannot do and not assume that he or she has a particular power.

The other point that hon. Members have overlooked concerns the provisions of the Data Protection Act 1998, which says that information passed may be used only for the purpose specified. If we do not say specifically that the director can use information for his other functions, he could fall foul of the Data Protection Act. The clause is necessary to enable the director to do the job in a legal fashion.

Mr. Grieve: I had not foreseen what a Pandora's box I would open. I stood up to initiate a debate on the clause, and suddenly we have heard the cats meow. It may be that, as we approach the end of our proceedings, there is a sudden urge to express feelings that have been building up for a long time. My only regret while listening to the hon. Member for Wellingborough was that he did not comply with the civil procedure rules and provide us with a skeleton argument beforehand. We would then have been better informed.

However, I am grateful to the hon. Gentleman for his contribution, and to the Minister for his explanation of what is an important issue, which we will develop as we examine part 10. I am grateful to him for amplifying the bare words that do, on the face of it, give rise to comment.

Question put and agreed to.

Clause 420 ordered to stand part of the Bill.

The Chairman: Before we proceed, I wish to explain to the hon. Member for Glasgow, Pollok (Mr. Davidson) that I ruled him out of order because the points that he sought to raise were not covered by clause 420. I am sure that he could find a suitable opportunity in our debate on the remaining clauses, should he so wish.

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Clause 421

Disclosure of information to director

Mr. Grieve: I beg to move amendment No. 625, in page 244, line 16, at beginning insert—

    'Except as provided for in subsection (3) below,'.

The Chairman: With this we may discuss amendment No. 635, in page 246, line 20, at beginning insert—

    'Except as provided for in subsection (8) below,'.

Mr. Grieve: The clause provides for the disclosure of information to the director. Subsection (1) says:

    (1) Information which is held by or on behalf of a permitted person

as defined in subsection (5),

    (whether it was obtained before or after the coming into force of this section) may be disclosed to the Director for the purpose of the exercise by the Director of his functions.

    (2) A disclosure under this section is not to be taken to breach any restriction on the disclosure of information (however imposed).

    (3) But nothing in this section authorises the making of a disclosure—

    (a) which contravenes the Data Protection Act 1998 (c.29);


    (b) which is prohibited by Part 1 of the Regulation of Investigatory Powers Act 2000 (c23).

The amendment is designed to probe what will remain restricted, and what will be allowed to be disclosed. I want the Minister to explain what the two subsections will—and will not—allow to be disclosed.

Mr. Ainsworth: Subsection (2) states that a disclosure of information to the director, under the gateway that the clause provides,

    is not to be taken to breach any restriction on the disclosure of information.

That is an important statement, with regard to the operation of the information gateways that the Bill provides.

Subsection (3) inserts a rider to subsection (2), stating that the clause's provisions do not authorise a disclosure that contravenes the Data Protection Act 1998, or part 1 of the Regulation of Investigatory Powers Act 2000. The provisions are not intended to override those that already exist in data protection legislation and with regard to intercept material. An identical provision is made in clause 423, with regard to disclosures of information by the director.

As the Bill does not allow any disclosure to be made that is incompatible with the provisions of those Acts, the amendment would be superfluous: it would merely draw explicit attention to subsections (2) and (3), and to subsections (7) and (8) of clause 423.

Although I appreciate that hon. Members want the legislation to be clear, there is no scope for confusion on the point that has been raised. The Bill is lengthy, and we should not add to it unnecessarily.

Mr. Wilshire: I apologise to the Minister in advance, if my remarks make me sound like the hon. Member for Glasgow, Pollok.

During the Committee's proceedings, my hon. Friends and I have occasionally proposed restrictions

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and limitations, and we have been told that we are being soft, and that we are trying to prevent the director from getting what he wants. However, if I correctly understand the Minister's comments, he is now proposing to impose restrictions on the director's powers. Would that not weaken the Bill? Why is he asking us to make concessions with regard to privacy and protection, when previously he has castigated us for asking for that?

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