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Mr. Djanogly: We keep hearing the same words—balance and safeguards—from the hon. Gentleman and from Conservative members of the Committee. Genuine concerns have been expressed that those words are not applicable to the clause as it stands. The hon. Member for Hemel Hempstead mentioned that the provision applies to people under investigation, but the whole point of disclosure notices is that their remit is much wider than those under investigation. In fact, my personal concerns are about those who are not directly under investigation—the ancillary companies and individuals who might be sent a notice out of the blue. They deserve protection as much, if not more so, than the person being investigated.
The points that have been made are cumulative. There is no grading of the importance of the crime involved: in practice, anyone is subject to the provisions, even though a casual observer may have thought that the Bill was about serious organised crime. We have noted no discernment regarding the rank of SOCA members of staff who can operate many of the provisions. I therefore concur with many of the points made by my hon. Friend the Member for Beaconsfield.
Caroline Flint: May I take it that the hon. Gentleman disagrees with Liberty, a group that has on many occasions disagreed with Government policy on human rights? Liberty says:
''These powers are already enjoyed by the Serious Fraud Office and will now be extended to the police, SOCA, and Customs and Excise. Liberty accepts that there is scope for compulsory questioning and production powers to be used. It is common practice in company law, and when dealing with regulatory offences, to require responses to questioning.''
Mr. Djanogly: I make two points in response to the Minister. The first, which I addressed in my initial remarks today, is that the provisions under the Enterprise Act 2002 relating to the SFO and those under the Companies Act 1985 relating to DTI investigations have to be put in a different context from the reality in which those investigations are put into practice.
Secondly, I was making a specific point about the rank of the individuals who can operate the provisions. Clause 56(3) refers to
''a member of the staff of SOCA'',
not to a member of staff of any rank.
Vera Baird: The explanatory notes state—correctly, I believe—that the Assets Recovery Agency
''has the power to compel individuals to co-operate with investigations by producing documents and answering questions.''
What rank do the ARA people have to have?
Mr. Djanogly: I do not know. Perhaps the Minister can answer. I am looking at the Bill before us and the gap that I perceive in its provisions.
Caroline Flint: Does the hon. Gentleman also disagree with Liberty on this issue? Liberty states:
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''One of the features of SOCA is the flexible nature of its staff's work. Chapter 2 (in particular clauses 38–44) allows for SOCA staff to have the full powers of police constables, immigration officers, and customs and excise officers designated upon them by the Director General of SOCA. This is understandable, as SOCA will cover a variety of areas currently split between separate agencies. It is important that SOCA staff, when designated these roles, are accountable in the same way as those who normally carry out the function.''
We emphasised that and resisted amendments in that respect on Tuesday. Surely what is important is that a member of SOCA who is involved in carrying out the functions should ensure that he has the designated powers that are appropriate and is therefore accountable in the same way as someone who may be called a constable? The powers, not the person's title, are what is important.
Mr. Djanogly: First, we discussed this on Tuesday. Secondly, I do not regard myself as a representative of Liberty. Thirdly, we did not discuss disclosure notices and the person who is an ''appropriate person'' for the purposes of subsection (3). I think that I have made our position quite clear. Subsection (4)(b) is very broad, referring to the requirement to
''provide information with respect to any such matter as is specified in the notice''.
Presumably, it does not even have to relate to the investigation, which is at least specified in paragraph (a).
Amendment No. 211 relates to duties of confidentiality. We tabled the amendment because we have serious concerns that non-directly connected parties—third parties—who receive notices and who are asked to produce documents or speak to them may have contractual duties of confidentiality in respect of the documents in question. That requirement might be quite fair in relation to the accused, but it could have a significant impact on the business of a third party. Our argument is not that in no circumstances should the documents have to be produced, but that, as at present, the question should have to be put to a court to decide.
Caroline Flint: I am sorry to take up the Committee's time, but it is important to correct misinformation. The hon. Gentleman tried to make a point about subsection (4)(b). The phrase ''such matter'' in that subsection refers back to
''matter relevant to the investigation''
in paragraph (a). They stand together.
Mr. Djanogly: If so, I suggest that the drafting does not work. Paragraph (a) refers specifically to matter that is ''relevant to the investigation'' and paragraph (b) is not clear. It reads:
''provide information with respect to any such matter as is specified in the notice''.
It does not say that the matter is relevant to the investigation. It may be a minor drafting point. If the Government were prepared to put ''relevant to the investigation in subsection 4(b)'', I would be much happier.
Returning to amendment No. 211, I share the concerns that were expressed by my hon. Friend the Member for Beaconsfield. I shall end there, on the
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basis that my hon. Friend the Member for Sutton Coldfield (Mr. Mitchell) wants to speak to new clause 16.
Mr. Mitchell: This has been a most interesting and sometimes enlightening debate. As the Minister said, there is a substantial difference across the Committee, which was well ventilated and understood on Tuesday. The Opposition are very concerned about the way in which powers are to be given to SOCA officials willy-nilly and there is no doubt that we will come back to the issue on Report and in the other place. There is also a problem with the ranking structure, as my hon. Friend the Member for Huntingdon pointed out. There is nothing between the Government and ourselves on that—the Minister said on Tuesday that it was not possible to clarify the matter at this stage, but that it would be in the future. We shall return to that point, too.
I wish to speak briefly to new clause 16. I sensed that the Minister had some sympathy with our argument. The purpose of the new clause is to provide a means for resolving disputes about whether a specified document is subject to privilege. At present, as she conceded, there is no procedure for dealing with the inevitable occasions on which such disputes arise. The clause is modelled on schedule 1AA(6) of the Taxes Management Act 1970. The amendment is clearly sensible. The right not to disclose legally privileged documents and so on is correctly included in the Bill—in clause 58—yet there is no mechanism for dispute resolution. Without doubt, disputes will arise regarding what documents are covered by the exemption. It must be right, therefore, for there to be a statutory device whereby disputes as to what information is legally privileged can be resolved. I hope that the Committee agrees.
Finally, the hon. and learned Member for Redcar (Vera Baird) made a good point about the Criminal Justice Act 1987. I think that, of the members of this Committee, only you, Mr. O'Brien, the Government Whip and I were MPs at the time—I voted for the Bill and the Government Whip voted against it. The hon. and learned Lady's point was fair, and my hon. Friend the Member for Beaconsfield, who made such pertinent comments, will, no doubt, read the Hansard report and decide whether he wishes to re-raise the matters later.
Vera Baird: I did not talk about the powers of the Serious Fraud Office. The hon. Gentleman is right to say that I am far too young to have been in Parliament when those provisions were enacted. What I did mention was the Assets Recovery Agency, which was set up under the Proceeds of Crime Act 2002, and came into force in 2003. I have to admit that I would not have remembered this if it had not appeared in the explanatory notes, but that agency does have the same powers. It is not even a police agency, so if there are no problems with the application of this kind of regime in another agency that is not confined to police, perhaps some of the hon. Gentleman's concerns can be assuaged by looking at the work of ARA.
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Mr. Mitchell: I am grateful to the hon. and learned Lady for clarifying the point, and I shall reflect on what she has said when I read it in Hansard. Of course, I realise that she, the Minister and the other ladies on this Committee, are far too young to remember the incidents to which I referred, but which the Government Whip and I are old enough to remember.
There is an important point of which the Committee is seized. We are dealing with substantially increased powers, and all of us wish to take care that the intrusion of the state into our lives and our rights should be carefully thought through before we allow the accretion of such powers. All of us are striving to get the balance right. As the hon. Member for Somerton and Frome made clear in his final remarks, that is what the debate is about.
As I did not move the amendment, I cannot withdraw it, but the Opposition do not seek to press it.
Amendment negatived.
Clause 56 ordered to stand part of the Bill.
Clauses 57 and 58 ordered to stand part of the Bill.
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