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Caroline Flint: I am sorry that the hon. Gentleman has to leave but I would like to say something as he goes. He made a number of comments about our proposals being fascist. I remind him that the requirement on a person subject to a disclosure notice to answer questions mirrors provision in section 2 of the Criminal Justice Act 1987, which was introduced by a Conservative Government. We must be careful about using the sort of language he used, because it does not add much to discussion of a serious subject.
Vera Baird (Redcar) (Lab): My hon. Friend will be aware that neither the Law Society or the Bar Council nor the Justice and Liberty organisations take anything like the view expressed by the hon. Member for Beaconsfield. All those bodies support the introduction of the powers, although they have some reservations.
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Caroline Flint: I thank my hon. and learned Friend. Scrutiny of Bills is important, and raising tension and emotions through scaremongering is not helpful to a sensible review of legislation.
Much of organised crime relies on business transactions and facilitators to manage its finances and provide transport and storage. Some people and organisations involved on the periphery of such transactions are entirely legitimate or have only a minor involvement in the group's criminality, but unfortunately—or fortunately for law enforcement—have information about the group's operation, which we would try to access. There is seldom enough evidence to charge those individuals, nor is there any incentive for them to share information with the police. Although those who come forward with information useful to the prosecution can be compelled to give evidence in court, they are under no obligation to answer questions.
The Serious Fraud Office and Assets Recovery Agency rely on their use of disclosure notices to require individuals to produce documents and answer questions in their investigations. The amendments would prevent prosecutors and investigators from asking questions relevant to the investigation and to the specified documents. However, a limited ability to ask questions would be an important addition for investigating organised crime.
Powers already exist to seize and require the production of documents. This Bill is intended to provide added value and deal with the fact that existing powers are hampering investigations and the legitimate pursuit of criminals. The notices would add a limited ability to ask questions of the person who has the information. In many investigations there is a reasonable expectation that there is relevant evidence, but it will not necessarily be clear which documents contain that information or what those documents mean. The Serious Fraud Office finds such powers invaluable in its investigations and has been able to use them fairly. We are providing the same safeguards against self-incrimination to protect those questioned. Many organised crime investigations involve similarly complex transactions, and that is why the power should be extended beyond serious fraud to all serious crime.
Mr. Heath: One thing the Minister has not mentioned, which is important to our understanding of the need for the provisions, is that worse than simply not wanting to co-operate with the police, the person involved will often be intimidated by the organisation about which he holds information. It is therefore necessary to have a counterbalance to that.
Caroline Flint: I absolutely agree, and that is why in other areas of the Bill we have addressed issues of protection, not only for witnesses in trials, but for those disclosing information who may be subject to coercion and intimidation.
Amendment No. 211 would prevent any document or information from being disclosed when there is any duty of confidentiality. There are tried and tested definitions of what confidential material should not be available to investigators, and we have excluded that
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material as outlined in clause 58, which includes confidential personal business records and confidential legal, medical and journalistic material. The amendments would exclude any potentially confidential material and drastically limit the effectiveness of the notices. The proposed new clause rightly raises the need for a process to separate privileged material from material that can legitimately be seized, and could apply to materials seized under any power.
Clause 60(9) provides that professionally privileged material cannot legally be seized under a clause 60 warrant. Such documents can be taken only by virtue of the powers in part 2 of the Criminal Justice and Police Act 2001, which apply to the disclosure notices in part 2 of this Bill as well as other search and seizure provisions. Any such seizure would be subject to the same safeguards as seizures under other powers. For instance, the Act and associated codes of practice provide for the material to be seized and stored securely by the investigators separately from other material until it can be examined. They provide for anyone with a reasonable interest in the material to be present when it is examined to determine whether it is privileged. They also provide for any party with an interest in the material to apply to a judge for its return if they believe that it is being retained unlawfully.
We believe—as I hope the Committee will—that the provisions already provide an adequate framework to ensure workable, but effective safeguards for separating such material, and I hope that hon. Members will not press the amendments or the new clause.
Mr. Heath: The earlier exchange was unfortunate because it polarised the Committee on a serious issue in a way that perhaps did not contribute to our best understanding of it. There is, of course, a very serious issue in granting such extraordinary powers to the state, and the hon. Member for Beaconsfield was right to question that and to put the Committee on guard against any arbitrary extension of powers. Equally, however, we must clearly understand the context in which those powers will be used. As the Minister rightly said, they form part of previous legislation on serious fraud, which was proposed by her party and introduced by the previous Government.
My main priority in this part of the Bill is to get the balance right and establish the right context for the use of these extraordinary powers. That is why the earlier discussion was so important to me. Unless we clearly define the offences that fall under these powers and the safeguards on their use, we risk giving the state a quite extraordinary power to intrude on personal liberties. I think that most members of the Committee would not want to extend the powers in that way.
David Cairns: The hon. Gentleman is making his case in a serious and measured way. Earlier, he made a jocular reference to the Stasi and my hon. Friend the Member for Hemel Hempstead, and we all laughed, having understood it for the joke that it was intended
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to be. However, does he not understand the anger that Labour Members feel when we hear the sort of casual references to the fascist state and fascism that the hon. Member for Beaconsfield bandied about, particularly as we approach holocaust memorial day? Such allegations cannot be casually bandied about, no matter what reservations people have about the provisions. Words such as fascism and fascist state should not be employed in this context. Will the hon. Member for Somerton and Frome therefore join my colleagues in deprecating such remarks?
Mr. Heath: I am grateful to the hon. Gentleman. I have given him the opportunity to express himself. As I said, the earlier exchange was unfortunate, but let us move on and deal with matters in the right context.
David Cairns: Wishy-washy Liberal.
Mr. Heath: The hon. Gentleman can chunter as much as likes from a sedentary position, but I will express myself in the way that I choose, not the way that he chooses.
Many of us would be more at ease about the clause if the limitations on the use of the powers were expressed more explicitly. The Minister has given us a lot of assurances on this and previous amendments, but they have often been assertions rather than limitations in law. That is the difficulty that many of us have with the proposals.
Mr. Geoffrey Clifton-Brown (Cotswold) (Con): I thank the hon. Gentleman for calming the tone of the discussion. Is not the issue that free and libertarian states should never take any power unless it is necessary and expedient to do so? Is not there a danger that it can take one power, then another and another until, all of a sudden, the balance has shifted considerably? That is precisely what we are considering here—whether the balance is correct.
Mr. Heath: The hon. Gentleman is right to draw attention to the incremental accretion of powers, of which Parliament, in particular, should be very wary. He is also right to say that the balance that must be struck is crucial to the equation.
10.15 am
Mr. McWalter: I am grateful to the hon. Gentleman for the way in which he has calmed the debate, after the hotter tones heard earlier. The debate might have a beneficial effect by ensuring that the operational directives given to members of the Serious Organised Crime Agency will make it clear when people are not under investigation and when they are. It might be of some use in that context.
Mr. Heath: I am grateful to the hon. Gentleman for that comment. My concern, to be absolutely open about it, is that codes of conduct are ephemeral and capable of change. Acts of Parliament are capable of change—these days, we sometimes revise Acts of Parliament before they have even been implemented—but at least Parliament acts as a safeguard. The same is not true of the way in which the statutes that we pass are operated by the agents of the state. That is why, when giving powers, we must be so careful to ensure that they are circumscribed to ensure the safety and liberty of the citizens of this
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country. That is a serious measure, which should not require any form of badinage in the Committee, but does require our serious attention. I hope that we are now focused on the provisions before us.
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