Proceeds of Crime Bill

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Mr. Tredinnick: My hon. Friend has put his finger on it. The Committee's worry should be that through the back door, we might be giving much greater powers than were intended. Although the provision

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may appear innocuous, it could translate into a substantial increase of law enforcement powers.

Mr. Grieve: I agree. It is important to read subsection (1) in its entirety. Paragraphs (a) and (b) can easily be disassociated from the exercise of the director's functions mentioned in paragraph (c)that is obvious. Paragraph (d) refers to

    the exercise by the prosecutor of functions under Parts 2,3 and 4,

but those parts are directly linked to offences that are committed for the obstruction of the exercise of those functions. Paragraph (e) refers to

    the exercise by the Scottish Ministers of their functions under part 5,

and paragraph (f) refers to

    the exercise by a customs officer or a constable of his functions under Chapter 3 of Part 5.

Paragraph (g) is about the safeguarding of national security. However, that has always been such an important issue that it may fall within a wholly exceptional category, so I do not have too much trouble with it. Paragraph (h) relates to investigations outside the United Kingdom, where a completely different problem arises. However, it is linked to the director's functions, rather than being outside them. Paragraph (i) mentions

    the exercise of a designated function,

which raises the possibility of a future statutory instrument, although I shall leave that to one side.

My hon. Friend is correct to say that paragraphs (a) and (b) have nothing to do with the director's functions. I want a debate on why they are in the Bill, and I hope for an explanation. What are the consequences for law enforcement? I apprehend that if the director is given a power that might be greater than those of the law enforcement agencies, the agencies will exert pressure to be able to use his information when they cannot get the information for themselves. That would not be good for the director or for law enforcement, and it is not a good thing for this Parliament to legislate for.

Mr. Tredinnick: My hon. Friend has unearthed a plot. Does he suspect an ulterior motive that has been disguised from the Committee? He has fingered something very important.

Mr. Grieve: I am not sure whether I would describe it as a plot. After all, one can read it in the Bill. However, the power is not covered by the Bill's described purpose. From that perspective, it is an unusual power, and it widens the scope of the Bill, even as the Minister described it on Second Reading. Important issues are attached to paragraphs (a) and (b), and I would be grateful to hear the Minister's justification for them, so that we can decide whether we wish to allow them to remain in the Bill, or whether we will object to them.

Mr. Alistair Carmichael (Orkney and Shetland): I am grateful to the hon. Member for Beaconsfield for tabling the amendments. They are very useful, and strike at a fundamental concern that I have felt throughout the Committee's deliberations on the Billthe issue of the cross-contamination between the civil functions, as laid out for the director and the Government agencies, and the criminal functions.

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In earlier sittings, we gave fairly wide-ranging, swingeing powers to the director and other officers for the recovery of articles and for conducting investigations under civil procedure. I was happy to go along with that because we were dealing with civil procedure, not with something that would deprive someone of their liberty. That is an important distinction.

We have the Minister's assurances that there is a hierarchy of prosecution, recovery and so on, but that does not appear in the Bill. We were told that it cannot appear there because of drafting problems--I never quite understood what they were. I am concerned that by including subsection (1)(a) and (b) we open a back door and provide extra powers for law enforcement agencies.

In my experience, if a back door is opened, someone will use it. Perhaps not immediately, but eventually, the hard cases that make bad law will occur. Law enforcement agencies will pressure the director of the Assets Recovery Agency to use the provisions. I believe that that is wrong, and I would never have agreed to many of the things that I have agreed to elsewhere in the Bill if they had related to law enforcement. That is a step too far for criminal procedure.

When I look down the line at how the Bill will be regarded by the courts in a few years, I foresee massive problems with cross-contamination. I can envisage appeal case after appeal case being brought on points concerning the admissibility of evidence, and it will be asked how the director came to exercise those functions in the first place. To answer the point put to me earlier by the hon. Member for Glasgow, Pollok, we do not promote the cause of law enforcement by providing the enforcers with back-door powers. If we take the view that the police, Customs and Excise or any other law enforcement agency should have those powers, we should give them to them expressly. We should not do it by the back door. The Government are heaping up problems for the future.

The Chinese walls between the functions of the Assets Recovery Agency and the criminal prosecution authorities are important. It was because of them that I expressed concern earlier that the Lord Advocate was to be given the functions in Scotland. In Scotland, all those involved work in the same building, and the whole set-up would become far too incestuous and would lead to profound difficulties.

I hope that the Minister will give serious consideration to the points raised by the hon. Member for Beaconsfield about the inclusion of these provisions. There is a great deal of force in the argument that there should be a much more effective separation of powers than there will be if they remain part of the Bill.

Mr. Ainsworth: Before I respond in detail, may I say one thingnot to score points, but to put something on the record? I accept that this is a serious Committee issue, but we have agreed to cull time in Committee. The Opposition know the gravitas of their various amendments, so it is pretty ridiculous to waste time in Committee so that we wind up at this time of the day

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moving on to deal with substantial issues that need proper consideration, with yet more amendments. The Opposition have some responsibility to use time in Committee in an appropriate way, and not to deprive us of the opportunity to consider the later amendments properly. The hon. Member for Spelthorne has spent a lot of time on earlier amendments. Other members of the Committee objected to that. We now have just over an hour before the knife falls, and we still have very serious issues to consider.

Mr. Wilshire: The Minister said that he wanted to put something on the record, but that cannot go unchallenged. Whatever may have taken place this morning, he must accept that it was in order, because the Chairman allowed it to happen. The Opposition did not impose the timetabling mechanisms for the Committee. Indeed, the hon. Gentleman will probably be aware that we objected to that timetabling. The time limits were the Government's proposals, and they had a majority. The Minister may not like what is happening, but it is not for him to pick and choose, but for the Opposition to question him. Surely to goodness he has the good grace to accept that we will be the deciders of our own tactics.

Mr. Ainsworth: Absolutelyand I am exposing the consequences of those tactics. It is true that the Opposition object to timetables in principle, but there was much discussion, much agreement and much flexibility. Changes were made whenever they were requested.

Mr. Carmichael: Will the Minister give way?

Mr. Ainsworth: I do not want waste time now talking at length about this matter.

Mr. Carmichael: My question is short. Will the Minister be more specific about what he means when he refers to ''the Opposition''?

Mr. Ainsworth: I aim nothing at the hon. Gentleman or his party; I am talking about the Opposition Whip.

Mr. Mark Field (Cities of London and Westminster): Will the Minister give way?

The Chairman: Order. Can we deal with the amendment?

Mr. Ainsworth: Yes, Mr. McWilliam. I shall not give way to the hon. Gentleman.

Amendments Nos. 609 and 610 would delete subsection (1)(a) and (b), which allow the director to disclose information for the purposes of criminal investigation or criminal proceedings. Amendments Nos. 621 and 622 would do the same in respect of the Scottish clause. Amendment No. 617 would restrict the disclosure of information by the director for the purposes of a criminal investigation to cases when a criminal investigation was being carried out, whereas the clause currently allows for disclosure when a criminal investigation may be carried out.

The director will require statutory authority to enable him to disclose information. The clause provides that authority. It gives the director the power to disclose information for certain specified

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purposes, subject to restrictions that are already set out in the clause. The provisions for the disclosure of information by the director under the clause and the equivalent Scottish provisions under clause 427 in relation to criminal investigations and criminal proceedings mirror the provisions under section 17(2)(a) and (b) of the Anti-terrorism, Crime and Security Act 2001. They apply to disclosures that may be made under, for example, the Harbours Act 1964, the Employment Agencies Act 1973, the Consumer Credit Act 1974 and the Estate Agents Act 1979.

The provisions allow the director to disclose information that he has obtained, or which has been obtained on his behalf, in connection with the exercise of his functions, if the disclosure is for the purpose of any criminal investigation that is being or may be carried out, whether in the United Kingdom or elsewhere, and any criminal proceedings that have been or may have been started, whether in the United Kingdom or elsewhere.

It seems likely that in exercising his functions in criminal confiscation and civil recovery investigations, the director will come across information that relates to criminal conduct. Indeed, that seems inevitable, given his focus on criminally or unlawfully acquired property.

4 pm

As we have made clear from the outset, the Government intend that prosecution should be the primary goal. We recognise that the director's investigations may bring to light information that would be relevant to a criminal investigation, as in the case of a civil recovery or confiscation investigation. In such cases, the director must be able to refer the information to the law enforcement agencies, which might involve the suspension of his civil recovery investigation if the information involved related to the property being considered for civil recovery. That was set out in the paper that I made available to the Committee before our consideration of part 1 of the Bill, in which we outlined how we envisaged that the director would exercise his functions.

We are considering whether the director should also be able to disclose information for the two other purposes specified in the Anti-terrorism, Crime and Security Act--initiating or ending such a criminal investigation or proceedings, and facilitating a determination of whether such an investigation or proceedings should be initiated or ended. It is not clear that the power to disclose available to bodies covered under that Act should be wider than the power available to the director. If we reach that conclusion, I intend to table amendments on Report.

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