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I do not resile from all that I have said about data sharing and data matching being crucial in the fight against crime generally, and even more so in terms of serious and organised crime. However, it is right and proper that we put safeguards in place to prevent data mining and data phishing—a different sort of phishing from the fishing that was referred to earlier.

On the proceeds of crime, law enforcement agencies have used the powers in the Proceeds of Crime Act 2002 to ever-increasing effect. In 2006-07, they recovered a record total of more than £125 million of assets from criminals, representing a fivefold increase over five years. Last month we launched a new asset recovery action plan to double last year’s total to £250 million a year by 2009-10. Clauses 68 to 76 bring forward a set of proposals that will contribute to the delivery of this new target.

Jeremy Wright (Rugby and Kenilworth) (Con): Does the Minister accept that one of the reasons why the Assets Recovery Agency has not been as successful as we all might have hoped is that when cases are brought under the Proceeds of Crime Act, they take a long time and are defended to the hilt—often by the use of changes of counsel or the extensive use of the Human Rights Act? It could be argued that that is why those cases have not set the necessary precedents to allow the ARA to recover as much money as it, and we, would like. If that is the case, what confidence can any of us have that the transfer of responsibilities to the Serious Organised Crime Agency will be any more successful?

Mr. McNulty: The hon. Gentleman has got the wrong end of the stick. This year, the Assets Recovery Agency has been more successful than it was in the past. I take in part his point about much of its success being stuck in the courts pipeline. In one sense that is quite proper; it comes down to safeguards, although there are abuses. However, with the greatest respect, that is not a reflection on the success or otherwise of the ARA, either within or outwith the Serious Organised Crime Agency. As he suggests, the current situation owes more to the shenanigans—that is probably the technical term—of assorted defence lawyers who are seeking to defend their clients and prevent the recovery of their assets and ill-gotten gains. I honestly do not think that that charge could be levelled unduly at the ARA, or that the issue would lead to a lack of success on the part of the ARA. Those are matters that the ARA, SOCA and, more generally, the Home Office are looking to take forward with colleagues in the criminal justice system. Although there might be abuses around the edges, people are perfectly entitled to pursue objections to their ill-gotten gains being recovered, and we do not want to throw the proverbial baby out with the bath water.

Jeremy Wright: I agree with the Minister entirely, and I certainly do not suggest that any of the practices to which I referred have been used improperly. My point is that I do not see how we can be confident that the provisions in the Bill will result in SOCA being more likely to recover the proceeds of crime than the ARA was; what I am suggesting to the Minister is that the provisions do not go to the root of the problem of why the ARA has not been successful.

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Mr. McNulty: I would say the contrary: I think that they do, but I do not accept that the ARA has not been successful. In terms of getting hold of the readies—to once again use a technical term—I accept that the ARA has been delayed somewhat in the court system. We are working with prosecution authorities and others, based on the experience of the ARA’s relative success to date, to bring forward in the Bill particular proposals that we think will go towards addressing the issues to do with recovery through the courts that the hon. Gentleman agrees are problematic. I am sure that that can be explored in much more detail in Committee.

The hon. Gentleman is right in the sense that we think that what is outlined in clauses 68 to 76 will, at the very least, start to go to the heart of the problem to do with recovery orders working their way through the criminal justice and court systems. It may be that colleagues in the other place will come up with many more wonderful ideas; they certainly have not done so yet. The Public Bill Committee will determine that. I am all ears when it comes to proposals to try to do more to unblock the system, while still protecting the perfectly reasonable safeguards that apply to people, whether in respect of criminal matters or other matters. He is right that we can hopefully get more and more through the machine than we have done to date, but I do not think that the issue comes down to a lack of success on the part of SOCA or the ARA.

David T.C. Davies: I am grateful to the Minister for giving way; he is being extremely generous. Given that what he rightly calls legal shenanigans have prevented the ARA from getting its hands on £85 million of the readies to which he referred, has he made any estimates of what the legal costs are likely to be, both to the taxpayer and directly to the Home Office, of challenges to orders that are brought in as a result of the Bill? Presumably the Home Office has made an estimate of those costs; will it share that estimate with us, so that we can be made aware of it?

Mr. McNulty: Well, if that information is to hand—and I do not know whether it is or not off the top of my head—I will certainly make sure that it is available to the hon. Gentleman, but I repeat that we think that elements in the Bill will improve the situation and take it forward, so that it is made far better than it has been, not least for the reasons suggested by the hon. Member for Rugby and Kenilworth (Jeremy Wright).

As we have said, we plan to merge the key functions of the Assets Recovery Agency with the Serious Organised Crime Agency. To return to the point made by the hon. Member for Rugby and Kenilworth, we believe that that will maximise the skills and expertise of both agencies. We have given unequivocal assurances that there will be no reduction in resources or effort on the recovery of criminal assets in Northern Ireland, particularly after the merger.

We are making provision—again, this will help with the hon. Gentleman’s point—for the Asset Recovery Agency’s powers to pursue the civil recovery of the proceeds of crime in the High Court to be shared between SOCA and the main prosecuting bodies. Extending those powers to prosecutors will enable
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them to be used more often against more people’s assets. The Asset Recovery Agency’s responsibilities for the training and accreditation of financial investigators will transfer properly to the National Policing Improvement Agency.

The Bill also further extends powers in the 2002 Act. These include allowing suitably trained and accredited financial investigators to seize and detain suspect cash and to execute search warrants. Financial investigators will also be given investigation powers to help prepare their cases for the forfeiture of detained cash before the courts.

To improve asset recovery performance and processes further, we aim to table in Committee some additional amendments to the Proceeds of Crime Act. We propose to give the main prosecuting agencies investigatory powers in civil recovery proceedings. We will also enable prosecutors to represent the police and Her Majesty’s Revenue and Customs in cash forfeiture proceedings in the magistrates courts. To protect the value of a defendant’s assets under restraint, we propose to amend the provisions on the appointment of management and enforcement receivers. Finally, we need to make some amendments to the Serious Organised Crime and Police Act 2005 to support the transfer of the Assets Recovery Agency’s functions to SOCA and the prosecuting bodies. All those measures will improve asset recovery as a result of the merger.

Clause 77 makes certain surveillance powers that are currently available to Her Majesty’s Revenue and Customs for investigations into serious crime involving ex-Customs and Excise matters also available to HMRC for investigations into serious crime involving ex-Inland Revenue matters. That is a consequence of the merger of the two organisations.

The Under-Secretary of State for Northern Ireland, my hon. Friend the Member for Wythenshawe and Sale, East (Paul Goggins), has made clear the desire to provide Her Majesty’s Revenue and Customs with statutory authority to disclose its information to relevant bodies for civil enforcement purposes connected with the recovery of proceeds of crime. HMRC would then be allowed to share information with the Criminal Assets Bureau that operates in the Republic of Ireland. The result would be better progression of cases where we are seeking to restrain or freeze assets belonging to individuals suspected of being involved in organised crime, both in Northern Ireland and more widely across the UK.

That is an outline of the substance of the Bill. I said at the start that I wanted to deal with two aspects that were imposed on the Government in the other place and which, for reasons that I shall set out, we shall resist.

Rob Marris (Wolverhampton, South-West) (Lab): I am grateful to my hon. Friend for his generosity. Under schedule 1, one of the offences defined as a serious crime is people trafficking. There are also certain prostitution offences that come under the rubric of serious crime. The United Kingdom is a signatory to European convention against people trafficking, but has not yet ratified and implemented that convention. Can my hon. Friend tell us what the timetable is for the United Kingdom to act seriously and promptly on that important convention?

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Mr. McNulty: As my hon. Friend knows, we have already taken various steps—including taking forward the UK action plan on human trafficking and, during our presidency a couple of years ago, pushing the European action plan on trafficking. To be fair, the police, through the Association of Chief Police Officers and by other means, have shown over the past couple of years that they are taking the matter extremely seriously. All that is to the good and we will push on in those matters. As and when ratifying, rather than just signing, the convention means something substantial for the development of public policy, we will do so. It is important to get all the assorted building blocks in place through the action plans and in other ways prior to ratification.

My hon. Friend knows—I cannot remember the details—that a range of other nations have signed, but the last time I looked at the matter, Moldova had managed to ratify and that was it. I am not sure if that is still the case. A few more states may have ratified— [Interruption.] My hon. Friend helpfully heckles from a sedentary position. It is important, through European channels and more generally, to push people to take action on human trafficking under the law and by policing, rather than only on one level—the entry-level gesture of ratification—without substance in terms of development behind it.

Dr. Evan Harris (Oxford, West and Abingdon) (LD): Before the Minister moves on to the two issues that he intends to raise, can I take him back to the part 1 issue of serious crime prevention orders and the Liberty briefing? He will be aware that the Joint Committee on Human Rights shared concerns not only about legal certainty and the equivalence to a determination of criminal charge, but reference to a civil standard of proof. The Government maintain that that is a flexible standard that can be raised as high as that of beyond reasonable doubt. However, if, for issues relating to clauses 1 and 2, the standard will always be that of beyond reasonable doubt, would it not be a good idea to make that clear in the Bill for reasons of understanding our law and what the Government are about, and to avoid allegations relating to Paris Hilton, which the Minister mentioned earlier?

Mr. McNulty: The hon. Gentleman will know that there is a hierarchy involved. As my noble and learned Friend Baroness Scotland made clear in terms of McCann, we expect that the standard of proof required on the question of whether a person is involved in serious crime will be the same as that in criminal cases, but there may well be different standards in terms of prevention. I do not resile from what I said about the Liberty briefing and what I thought were rather poor assertions, but, as I said to the hon. Member for Bromley and Chislehurst (Robert Neill), that dimension and the nature of that hierarchy can be properly explored more fully in Committee.

The last two points raised in the other House—not with the support of the Government—were those of intercept evidence and the power to search for firearms. I shall deal with the latter issue first. Clause 78 was introduced into the Bill by amendment. The fact remains that there is already sufficient legislation in place to search for firearms. Section 47 of the Firearms
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Act 1968 gives powers to detain and search, and a constable may enter any place to conduct the search. Powers to seal off an area are provided by section 60 of the Criminal Justice and Public Order Act 1994, but under strict safeguards. ACPO has confirmed its very strong view that it is fully satisfied with its powers in that area and is concerned about the wide extension of powers that the amendment provides. Liberty has also expressed its concerns, agreeing with the Government’s position on the total lack of safeguards in this clause. [ Interruption . ] Well, to be fair and as I said at the beginning, what Liberty said about the orders earlier on in the Bill was unusually sloppy, lacked intellectual rigour and was assertion rather than fact, and I meant “unusually” as well as all the other words. I take very seriously what Liberty says, which is why I am all the more disappointed when I have cause to be.

Under the power to which I referred, any constable could decide to seal off an area with no requirement for referral to a senior officer, no indication of the extent of that area and with no time limits specified. On balance, that is a reckless provision that would disproportionately affect our communities and potentially result in public disorder, and it is not terribly well thought out. Appropriate, proportionate, intelligence-led policing, such as that conducted by Operation Trident in the Metropolitan area, has proved to be successful in tackling gun crime. Stigmatising certain communities by cordoning off areas in the way provided for in the clause would not achieve that goal, advance what is already on the statute book in terms of searching for firearms, or help in any way to develop community cohesion. For those reasons, as the House has probably already worked out, we intend to remove the clause from the Bill in Committee.

Let us consider intercept as evidence. The amendment, which was inserted in the Bill on Report in another place, is simple. It would alter the Regulation of Investigatory Powers Act 2000 to allow the prosecution to apply to the court for permission to use intercept as evidence in terrorism or serious crime cases. Unless or until an application was made, the current ban on intercept as evidence would stand. The amendment assumes that if a decision were made to offer intercept as evidence, regular public interest immunity provisions would be sufficient to protect sensitive material from disclosure. We believe that that is a rash assumption.

The Government opposed the amendment because we believe it to be unworkable and deficient. It is unworkable because it provides none of the safeguards—beyond public interest immunity—that the intelligence, law enforcement and communications agencies have told us are essential to protect capabilities, techniques and resources from disclosure if intercept were used evidentially. I believe that even those who support the thrust of such an amendment accept that there is probably a need and a desire to go beyond the current public interest immunity provisions to allay those concerns.

We believe that the amendment is deficient because the way in which the provision could be operated in the cases at which it is aimed—terrorism and serious crime—without falling foul of the European convention on human rights is far from clear. It is argued that the proposal is “permissive” and that we do not have to use it, but that is no excuse for bad
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legislation, especially when it fundamentally undermines the existing regime and the “equality of arms” principle that underpins it. That would undermine our ability to protect what we do.

Successive Governments have wrestled with how to ensure that a legal model could be simultaneously fair to the defendant, robust in the protection of sensitive material and practical enough to operate without diverting vital front-line security resources into servicing disproportionate administrative requirements. The Government’s position is well established. We support changing the law to permit intercept as evidence—but only if the necessary safeguards can be put in place and the potential benefits outweigh the risks. However, experience so far during the Bill’s passage has taught us that we need to be more open in our determination to find a workable solution.

Two years ago, when a substantive review previously took place—I appreciate that, even then, the world was slightly different in terms of terrorism—it was believed that there were no cases of serious crime or terrorism whose outcome would have been affected by the use of intercept as evidence. It is right and proper to make progress on that work. I believe that it is right and proper to work the matter through to a conclusion. We have therefore agreed to set up an independent review of the subject on Privy Councillor terms. Not only are we convinced that the politicians should come together on matters of national security, but we want to ensure that we work together to solve the difficulties of that highly complex matter, and not try to pretend that they do not exist.

We are sure that the use of intercept as evidence, as suggested by Lord Lloyd’s amendment in another place, is unworkable and deficient and we will try to get the relevant provision thrown out in Committee. We are not offering a Privy Council review in the context of the autumn’s proposed terrorism Bill as a ruse simply to get through the Committee stage of the measure that we are considering. However, the Lloyd amendment is substantially lacking in thought and rigour in offering a way forward for intercept as evidence. We hope that that view commands the support of the House.

The two main parties are conducting work on the matter as we speak. I am not entirely sure of the extent to which the Liberal Democrats have been drawn into that partner process; we have engaged with them up to now. I hope that we can reach a position whereby progress can be made on the matter or it can be set aside, whatever the review’s conclusion and the Government’s response to it, rather than tackling it in a slipshod and deficient manner in the Bill.

I therefore hope that, when we debate the current amendment, we can agree that that is not the way forward. By the time the issue returns to the House, we will all be better informed by the outcome of the review. We are trying to take things forward through announcements on the review, as in last week’s announcement, and I suspect that that will happen before the Bill goes into Committee, let alone its Report stage.

Mr. Nick Clegg (Sheffield, Hallam) (LD): Will the Minister further clarify his understanding of the
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mandate of the review mechanism to which he alluded and which will be held on Privy Council terms? Is it his understanding that the review mechanism would have as its objective making the proposition of the admissibility of intercept evidence in court a workable one—in other words, that the mandate is to make that mechanism work by overcoming the legal and other technical objectives—or does he have a looser view of whether it is either desirable or possible in the first place?

Mr. McNulty: As I understand it and as the hon. Gentleman will know, that stems from initial discussions between the Prime Minister and the Leader of the Opposition and subsequent discussions, albeit cursory, with the hon. Gentleman himself, with the right hon. Member for Haltemprice and Howden (David Davis) who speaks for the Conservatives, the Home Secretary and me. The answer is both. Clearly, the first mandate—an interesting word, but let me put that to one side—relates to whether there is a substantial and viable case, which would have to include the safeguards and other elements that are part of the debate, for taking forward intercepted evidence within an appropriate legal framework. Clearly, if the answer to that is yes, the substance of the hon. Gentleman’s point becomes the second part of such a review. If at that stage the answer, given the concerns of the security services, the police and others, is no, at least it takes the issue to termination—for want of a better phrase.

I think that that is a two-stage element—although they almost run together, so it is not really two stages. Is there a way to take these matters forward and use intercept as evidence in a way that probably goes beyond public interest immunity to what amounts to PII plus, plus or whatever? Some work has been done on that already. If the answer is yes, we should proceed as the hon. Member for Sheffield, Hallam (Mr. Clegg) suggests. If the answer is no, and everyone is convinced that it is no, that clearly brings the matter to an end.

I know that the Government’s view is sometimes characterised as being utterly against using intercept evidence, but in official terms at least our position has always been that we can look at such evidence if the framework that the hon. Gentleman suggested can be laid out. I have to say that from what I have seen I am not convinced that it can be, but the matter is worth exploring further and in more detail through such a vehicle as a review across party lines on Privy Council terms. I think that that is the way to take things forward.

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