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Mr. Heath: I am grateful for the Minister's explanation. The fact that she will rewrite the clause gives me some comfort, because it is not worded entirely sensibly. I could launch into a tirade of invective against the hon. Member for Hemel Hempstead.
Mr. Mitchell: It's too early.
Mr. Heath: It is too early in the day, although the extraordinary comments of the hon. Member for Hemel Hempstead would not have been out of place in the ranks of the Stasi—''We have ways of making you talk and it doesn't matter what offence you have committed.'' The matters raised are serious, but so are justice and the legal system. The idea that we can extend willy-nilly enormously intrusive powers of coercion will not do, even in new Labour. I am grateful for the Minister's explanation of the limitations of what she proposes, because it could serve as a helpful study aid for the hon. Gentleman, who seems to misunderstand these matters.
I appreciate what the Minister said about introducing amendments to the clause and I look forward to hearing what she has to say about them at a later stage. It would be otiose to amend at this stage what is to be amended, so I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn
Mr. Heath: I beg to move amendment No. 100, in clause 56, page 30, leave out lines 37 to 39 and insert
'a legally qualified prosecutor in the employ of the Director of Public Prosecutions, SOCA or the Revenue and Customs Prosecution Office.'.
The Chairman: With this it will be convenient to discuss the following amendments: No. 212, in clause 56, page 30, line 37, leave out 'constable' and insert
'police officer who is not below the rank of superintendent.'.
No. 207, in clause 56, page 30, line 38, leave out paragraph (b).
No. 232, in clause 56, page 30, line 38, after 'SOCA', insert
'of the equivalent rank to a person to whom paragraph (a) above applies.'.
No. 233, in clause 56, page 30, line 39, at end insert
'of the equivalent rank to a person to whom paragraph (a) above applies.'.
Mr. Heath: Amendment No. 100 would simply ensure that the disclosure powers would be implemented by a prosecutor, who is a legally qualified person, and that on no occasion would it be left to an investigating officer—a police officer—to decide that it was possible and necessary to use them. That is an important distinction, and I think that it is inherent in what the Minister has said. I do not think that there is any intention of extending the powers to people who are not legally qualified prosecutors, but the Bill does not say so with sufficient precision. My view is shared by the Law Society, which has expressed concern and wants to remove any ambiguity.
My amendment is in line with what the Minister has said, but I should be delighted if she demonstrated that
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it is unnecessary because the Bill covers the point already.
Mr. Grieve: We have reached an important provision, on which I have tabled amendments, but I shall begin by commenting on the amendment tabled by the hon. Gentleman, who raises an important point. Who will hand out the notices? He has come up with an alternative proposal of specifying that it should be
''a legally qualified prosecutor in the employ of the Director of Public Prosecutions, SOCA or the Revenue and Customs Prosecution Office.''
There may be other approaches, but I feel particular concern when I note that two of the categories of people who can give out notices under subsection (3) denote, effectively, individuals with the rank of a police constable, and that another category is simply a member of staff of SOCA. It need not be a member of staff who also holds a constable's warrant, in the way that we heard on Tuesday. Anyone who carries out the task of handing out disclosure notices should be a constable. An officer of Revenue and Customs will, I think, have a constable's rank. However, a member of the staff of SOCA will not.
The question also arises of the appropriate police rank, which is why our amendments require the person concerned to be someone not below the rank of superintendent. The amendments are all probing amendments and they are intended to get a bit of a debate going.
To return for a moment to the points made by the hon. Member for Hemel Hempstead—I do not think that we can get away from this—there are always defences of necessity offered by the state, but the powers in question are of a kind that one would identify as the hallmarks of a fascist state. If we are going to pursue such a route because we think that it is necessary for the curbing of crime, we should keep that constantly at the back of our mind. We are breaching—admittedly not for the first time, but certainly more widely than ever before—the principle that people, and especially those who are not themselves under investigation, should not be required to do anything to co-operate with the state, and certainly not to answer questions as opposed to just producing documentation.
Safeguards must exist. If, as I understand from the Minister, all those people carrying out what I call the on-the-street operation will have constable's warrants, I do not understand why the staff member of SOCA need be identified separately at all. Presumably the staff member turning up would also be a constable and therefore under an obligation to exercise an independent judgment.
9.45 am
Caroline Flint: As has been described by the hon. Member for Beaconsfield, the amendments reflect questions about how investigators and prosecutors will work together in issuing and using these notices. Those concerns have been raised by the Law Society and Justice, among others. Getting their respective roles right will be absolutely critical in ensuring that the information gained supports prosecutions and that the rights of those subject to notices are not infringed.
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All of us recognise that in tackling organised crime, investigators and prosecutors need to work closely together in making critical decisions at early stages of investigations, particularly, as has already been touched on, at the point of using the notices.
The powers of forced entry, search and interview under this chapter are more appropriate to be used by investigators than prosecutors. However, as I emphasised earlier, the prosecutors have a key role, first, in authorising the use of the powers and, secondly, in agreeing with the investigators how they will be used. We see the powers being used in partnership, with the prosecutor in the authorising role. Often the prosecutor will be involved in the execution of the powers, but that will not always be the case. We will ensure that prosecutors and investigators have proper training and clear guidance on how they should use these powers in practice.
The amendments would restrict who can exercise the functions of giving disclosure notices, as per clause 56, or of taking copies or extracts of specified documents and requiring a person who cannot produce a document to explain where they are, as per clause 57. It is important, if we are to be effective in using the powers of disclosure, that there is the ability to question individuals. We could be talking of vast quantities of documentation—not just paper documentation, but also that held on computer systems. We would, in all honesty, be creating something of a lame duck for ourselves if there was no opportunity or ability to ask some questions about documentation. I acknowledge that people did have concerns when we consulted via the White Paper on powers to tackle organised crime, but there was an understanding that if we are to have powers, those powers must be meaningful.
The functions under a clause 60 warrant include entering and searching premises using force if necessary, seizing documents or taking copies or extracts from them, and requiring an explanation of where documents are if they are not available. I suggest to the hon. Member for Somerton and Frome that carrying out these functions is very different from the prosecutor's role in authorising the notices themselves. Amendment No. 100 would restrict those who would carry out these functions to lawyers, but we believe, as I have tried to explain, that the practical execution of the functions should rest with investigators who are trained and experienced in this work, as we have set out in the Bill.
Amendments Nos. 212, 232 and 233 would set a minimum rank for investigators involved in carrying out the functions. We obviously agree these are sensitive and potentially intrusive new powers that will need to be authorised and exercised appropriately. The Bill provides for disclosure notices and application for warrants, as I have said, to be authorised by a Crown prosecutor or their equivalent, delegated by the relevant director or the Lord Advocate. In delegating those powers, the directors and Lord Advocate will want to ensure that the prosecutors are appropriately senior and experienced. The prosecutor will also specify which law enforcement staff can use the powers in the
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disclosure notice. It would be sufficient to ensure that use of the power is authorised by appropriately senior prosecutors, so there is no need to specify on the face of the Bill the minimum ranks of the investigators carrying out these orders. To reserve the practical application of this power to a superintendent would be far too restrictive and would not be effective enforcement.
Mr. James Clappison (Hertsmere) (Con): The Minister is talking about the rank of the person who authorises the exercising of the power. As she said, the person who actually exercises the power will be exercising some important functions, which she described, and will have some important powers. In clause 56(3), the appropriate person who is authorised to exercise those powers and who then carries out these functions is a staff member of SOCA. Will she say who and what the members of SOCA will be for these purposes?
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