Serious Crime Bill [Lords]


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Schedule 8

Abolition of Assets Recovery Agency and its Director
Amendments made: No. 179, in schedule 8, page 94, line 6, at end insert—
‘After section 272(6) (compensation for loss in relation to associated and joint property) insert—
“(7) In subsection (5) the reference to the enforcement authority is, in the case of an enforcement authority in relation to England and Wales or Northern Ireland, a reference to the enforcement authority which obtained the property freezing order or interim receiving order concerned.”’.
No. 180, in schedule 8, page 94, line 13, at end insert—
‘After section 283(9) (compensation) insert—
“(10) In the case of an enforcement authority in relation to England and Wales or Northern Ireland—
(a) the reference in subsection (5) to the enforcement authority is a reference to the enforcement authority which obtained the property freezing order or interim receiving order concerned, and
(b) the reference in subsection (8) to the enforcement authority is a reference to the enforcement authority which obtained the recovery order concerned.”’.—[Mr. Coaker.]
3.30 pm
Mr. Hogg: I beg to move amendment No. 168, in schedule 8, page 96, line 38, leave out paragraph 100.
The Chairman: With this it will be convenient to discuss the following amendments: No. 164, in clause 79, page 43, line 25, at end insert—
‘(2A) No order made by the Secretary of State shall amend or repeal any provision of another Act.’.
No. 165, in clause 79, page 43, line 26, leave out ‘or paragraph 100 of Schedule 8’.
No. 163, in clause 79, page 43, line 27, leave out from ‘8,’ to end of line 28 and insert
‘except under the super-affirmative resolution procedure as set out in section 18 of the Legislative and Regulatory Reform Act 2006 (c. 51).’.
No. 166, in clause 79, page 43, line 29, leave out subsections (4) and (5).
No. 162, in clause 80, page 44, line 6, leave out subsection (2).
Mr. Hogg: Before I speak to the amendments, may I thank the Public Bill Office for its assistance in drafting them? This is the last group of amendments on which I shall have a substantial voice. The staff of the office drafted a great many amendments, and the fact that they have appeared on the amendment paper in order and relatively comprehensible is to their credit, and I am grateful for that.
The amendments have three purposes. First, amendment No. 168 would delete the provision that enables the Secretary of State to
“repeal Part 6 of the Proceeds of Crime Act 2002”
and to make a consequential change to the statutes. Secondly, amendments Nos. 164 and 166 would remove the general power to repeal and amend legislation outside the Bill. Thirdly and lastly, the amendments would incorporate the concept of the super-affirmative resolution wherever the affirmative procedure is being adopted.
Amendment No. 168 is narrow in compass. I am against Secretaries of State taking to themselves powers by affirmative resolution to amend the language of or to repeal parts of other statutes. That should be done by primary legislation, in the passage of which one would have the opportunity to examine in much greater detail the proposals than is possible under the affirmative procedure.
On the second purpose, the more general point is that in the Bill, and in clause 79 in particular, the Government are taking a much more general power to repeal legislation by affirmative resolution. I find that difficult to justify, because affirmative resolutions are not amendable. Affirmative resolutions are presented to the House, which must accept them either wholly or not at all following a short debate lasting—normally—an hour and a half. In principle, that does not seem to be a good way of handling legislation. Indeed, the House recognised that by passing the Legislative and Regulatory Reform Act 2006 and the super-affirmative procedure measures.
Super-affirmative procedure broadly means that the House has the opportunity to debate an early draft of resolutions before they are laid before it. That way, Members can express a view on the draft before the resolution is made. That enables them to say whether they approve of the draft before it is laid, and it gives the Government the ability to modify the draft to reflect criticism. That is an improvement on the normal affirmative procedure.
My view has always been that we ought to have a mechanism for amending affirmative resolutions when they are brought before the House, so that we are not driven either to accepting or rejecting a law, but that is not the procedure at the moment. The amendments would incorporate the concept that we should always use the super-affirmative procedure for the affirmative resolutions that will be brought about by the Bill. That is probably the best of the available options.
I am sure that other hon. Members will say more on the matter, but to summarise, I very much dislike the ministerial habit of taking powers unto themselves. That also applies to Conservative Ministers in Administrations of which I was a member; no doubt I did it myself—[ Interruption. ] The Minister is smirking. Of course, I fear that he has a list of the affirmative resolutions that I brought to the House in a previous incarnation. In fact, I am against the habit. I become more libertarian and liberal as I get older, although I am not a member of the Liberal Democrats who, by the way, have no presence in the room at the moment.
We should be slow to give Ministers the ability to change other legislation with powers conferred in the Bill. If we are going to give such powers, it must be done by affirmative resolution, but that itself is pretty narrow, therefore given where we are the super-affirmative procedure is the best we can do. Those are my reasons for tabling the amendments.
James Brokenshire: I rise briefly to speak to the amendments tabled by my right hon. and learned Friend who, in his customary way, set out the legal basis to justify and underpin his proposals in a clear, concise and effective manner.
There is an ongoing general debate about the role of Parliament and the way in which the Executive seek to take additional powers to themselves by making an order, and the clause is another example of how further powers are being taken away from Parliament. The Prime Minister has indicated that he wants to strengthen the role of Parliament, and in that spirit we hope that that historical approach may be changed, although I have doubts about whether that will actually happen. The points that my right hon. and learned Friend made are effective and I will listen with great interest to how the Minister responds to them.
Mr. Coaker: Given the charming way in which the right hon. and learned Member for Sleaford and North Hykeham spoke to the amendment, I am loath to speak against it, but that is what I am going to do. He was honest enough to say that if he were in my position, he would propose similar order-making powers.
I refer members of the Committee to the House of Lords Delegated Powers and Regulatory Reform Committee, which considers the use of order-making powers. We changed one or two of the powers in parts of the Bill to take account of the points made by that Committee in its report, so that the order-making powers in the Bill are now consistent with the views expressed in that report.
Amendment No. 164 seeks to ensure that the Secretary of State cannot by order amend or repeal any provision of another Act, and amendment No. 162 would have the same effect. The Secretary of State will need to be able to make such amendments in order to make the Bill work effectively. Amendment No. 166 is consequential to amendments Nos. 162 and 164, because if the Secretary of State’s power to amend or repeal other enactments is removed, clause 79(4) and (5) are no longer necessary. However, I urge the Committee to reject the amendments as those subsections are not there for any reason other than to make this legislation work in practice.
Amendment No. 163 would mean that the order-making powers listed in clause 79(3) were subject to the super-affirmative procedure. I must resist that amendment. We set the parliamentary procedure in relation to the order-making powers at what we believe to be the appropriate level. As I said, in its report, the Delegated Powers and Regulatory Reform Committee agreed that the levels set were appropriate.
Amendments Nos. 165 and 168 relate to the Assets Recovery Agency and its merger with the Serious Organised Crime Agency. This includes the ability to raise a tax assessment against the suspected proceeds of crime. As part of the transferral of that function, the Bill provides for the ability to repeal that Revenue function so that SOCA will no longer have it as a function. That is because the use of tax powers against the proceeds of crime is subject to a review involving SOCA, Her Majesty’s Revenue and Customs and the Home Office. The review may conclude that the ability to raise tax assessment against unsourced but suspected criminal proceeds is best performed by HMRC and not SOCA. The function would therefore need to be removed from SOCA and given to HMRC. Alternatively it may conclude that the provisions are not required, as others are sufficient to recover the proceeds of crime. Again, that would require the repeal of the SOCA function.
I hope that I have explained the basis of the provision. I invite the right hon. and learned Member for Sleaford and North Hykeham to withdraw his amendment.
Mr. Hogg: I seek your guidance, Mr. Benton. I suspect that the answer will be, “No”, but you never know, I might be wrong. My preference would be to move amendment No. 163 and no other in the group, but I suspect that, as amendment No. 168 is first in the list, I cannot move amendment No. 163.
The Chairman: It will be in order to move amendment No. 163 at the appropriate stage.
Mr. Hogg: May I respectfully ask when that stage will be?
The Chairman: I shall enlighten you on that in a second.
Mr. Coaker: On a point of order, Mr. Benton. Will you enlighten me as well?
The Chairman: I understand that amendment No. 163 will be dealt with when we reach clause 79. We shall mark it to be moved formally then. However, that is conditional on your withdrawing amendment No. 168, Mr. Hogg.
Mr. Hogg: I am very grateful. In those circumstances, I shall not press amendment No. 168. I recognise that I could be said to be guilty of hypocrisy in this matter, in that I am sure that in the past I have moved order-making powers, and probably frequently too. Nevertheless, I do not like them, and I do not suppose I shall ever like them. I certainly do not like them now. If we are going to have them, we have to decide how best to protect the liberty of the subject and enhance parliamentary control. Given where we are, I think that the super-affirmative procedure is probably a good thing in most cases. I shall therefore move amendment No. 163 when I can, in order to assert that proposition. That being so, I beg to ask leave to withdraw amendment No. 168.
Amendment, by leave, withdrawn.
Mr. Coaker: I beg to move amendment No. 202, in schedule 8, page 97, line 14, leave out from beginning to ‘for’ and insert—
‘(1) Section 352 (search and seizure warrants) is amended as follows.
(2) In subsection (5)(b)’.
The Chairman: With this it will be convenient to consider Government amendments Nos. 203 to 222 and 227 to 238.
Mr. Coaker: These are minor and technical amendments and I commend them to the Committee.
Amendment agreed to.
Amendments made: No. 203, in schedule 8, page 97, line 15, after second ‘staff’, insert
‘or of the staff of the relevant Director”.
(3) After subsection (5) insert—
“(5A) In this Part “relevant Director”—
(a) in relation to England and Wales, means the Director of Public Prosecutions, the Director of Revenue and Customs Prosecutions or the Director of the Serious Fraud Office; and
(b) in relation to Northern Ireland, means the Director of the Serious Fraud Office or the Director of Public Prosecutions for Northern Ireland.’.
No. 204, in schedule 8, page 97, line 17, after second ‘staff’, insert
‘or of the staff of the relevant Director’.
No. 205, in schedule 8, page 97, line 21, leave out
‘a member of SOCA’s staff’
and insert ‘an appropriate officer’.
No. 206, in schedule 8, page 97, line 23, leave out
‘a member of SOCA’s staff’
and insert ‘the relevant authority’.
No. 207, in schedule 8, page 97, line 23, at end insert—
‘( ) After subsection (2) insert—
“(2A) The relevant authority may only make an application for a disclosure order in relation to a confiscation investigation if the relevant authority is in receipt of a request to do so from an appropriate officer.”’.
No. 208, in schedule 8, page 97, line 24, leave out
‘a member of SOCA’s staff’
and insert ‘an appropriate officer’.
No. 209, in schedule 8, page 97, line 26, leave out
‘a member of SOCA’s staff’
and insert ‘an appropriate officer’.
No. 210, in schedule 8, page 97, line 29, leave out ‘member of SOCA’s staff’ and insert ‘appropriate officer’.
No. 211, in schedule 8, page 97, line 30, leave out ‘member of SOCA’s staff’ and insert ‘appropriate officer’.
No. 212, in schedule 8, page 97, line 31, at end insert—
‘( ) After subsection (6) insert—
“(7) In this Part “relevant authority” means—
(a) in relation to a confiscation investigation, a prosecutor; and
(b) in relation to a civil recovery investigation, a member of SOCA’s staff or the relevant Director.
(8) For the purposes of subsection (7)(a) a prosecutor is—
(a) in relation to a confiscation investigation carried out by a member of SOCA’s staff, the relevant Director or any specified person;
(b) in relation to a confiscation investigation carried out by an accredited financial investigator, the Director of Public Prosecutions, the Director of Public Prosecutions for Northern Ireland or any specified person;
(c) in relation to a confiscation investigation carried out by a constable, the Director of Public Prosecutions, the Director of Public Prosecutions for Northern Ireland, the Director of the Serious Fraud Office or any specified person; and
(d) in relation to a confiscation investigation carried out by an officer of Revenue and Customs, the Director of Revenue and Customs Prosecutions, the Director of Public Prosecutions for Northern Ireland or any specified person.
(9) In subsection (8) “specified person” means any person specified, or falling within a description specified, by an order of the Secretary of State.”’.
No. 213, in schedule 8, page 97, line 33, leave out
‘A member of SOCA’s staff’
and insert ‘An appropriate officer’.
No. 214, in schedule 8, page 97, line 34, leave out
‘a member of SOCA’s staff’
and insert ‘an appropriate officer’.
No. 215, in schedule 8, page 97, line 35, leave out from beginning to end of line 36 and insert—
(1) Section 362 (supplementary) is amended as follows.
(2) In subsection (3)(a) for “Director” substitute “person who applied for the order”.
(3) After subsection (4) insert—
“(4A) If a member of SOCA’s staff or a person falling within a description of persons specified by virtue of section 357(9) applies for a disclosure order, an application to discharge or vary the order need not be by the same member of SOCA’s staff or (as the case may be) the same person falling within that description.
(4B) References to a person who applied for a disclosure order must be construed accordingly.”
(4) In subsection (5) for “(4)” substitute “(4B)”.’.
No. 181, in schedule 8, page 98, line 9, leave out from beginning to end of line 20 and insert—
‘Omit section 376 (evidence overseas).’.
No. 216, in schedule 8, page 98, line 21, leave out from beginning to end of line and insert—
(1) Section 377 (code of practice) is amended as follows.
(2) In the heading after “practice” insert “of Secretary of State etc.”.
(3) In subsection (1)—’.
No. 217, in schedule 8, page 98, line 25, at end insert—
‘(4) In subsection (9)—
(a) after “officer” insert “or the relevant authority”; and
(b) for “he” substitute “either”.’.
No. 218, in schedule 8, page 98, line 25, at end insert—
‘After section 377 (code of practice of Secretary of State etc.) insert—
“377A Code of practice of Attorney General or Advocate General for Northern Ireland
(1) The Attorney General must prepare a code of practice as to—
(a) the exercise by the Director of Public Prosecutions, the Director of Revenue and Customs Prosecutions and the Director of the Serious Fraud Office of functions they have under this Chapter; and
(b) the exercise by any other person, who is the relevant authority by virtue of section 357(9) in relation to a confiscation investigation, of functions he has under this Chapter in relation to England and Wales as the relevant authority.
(2) The Advocate General for Northern Ireland must prepare a code of practice as to—
(a) the exercise by the Director of Public Prosecutions for Northern Ireland of functions he has under this Chapter; and
(b) the exercise by any other person, who is the relevant authority by virtue of section 357(9) in relation to a confiscation investigation, of functions he has under this Chapter in relation to Northern Ireland as the relevant authority.
(3) After preparing a draft of the code the Attorney General or (as the case may be) the Advocate General for Northern Ireland—
(a) must publish the draft;
(b) must consider any representations made to him about the draft;
(c) may amend the draft accordingly.
(4) After the Attorney General or the Advocate General for Northern Ireland has proceeded under subsection (3) he must lay the code before Parliament.
(5) When the code has been so laid the Attorney General or (as the case may be) the Advocate General for Northern Ireland may bring the code into operation on such day as he may appoint by order.
(6) A person specified in subsection (1)(a) or (b) or (2)(a) or (b) must comply with a code of practice which is in operation under this section in the exercise of any function he has under this Chapter to which the code relates.
(7) If such a person fails to comply with any provision of such a code of practice the person is not by reason only of that failure liable in any criminal or civil proceedings.
(8) But the code of practice is admissible in evidence in such proceedings and a court may take account of any failure to comply with its provisions in determining any question in the proceedings.
(9) The Attorney General or (as the case may be) the Advocate General for Northern Ireland may from time to time revise a code previously brought into operation under this section; and the preceding provisions of this section apply to a revised code as they apply to the code as first prepared.
(10) In this section references to the Advocate General for Northern Ireland are to be read, before the coming into force of section 27(1) of the Justice (Northern Ireland) Act 2002 (c. 26), as references to the Attorney General for Northern Ireland.”’.
No. 219, in schedule 8, page 98, line 32, after ‘staff’, insert ‘or the relevant Director’.
No. 220, in schedule 8, page 99, line 3, after ‘provisions)’, insert ‘—
(a) after the entry for production order insert—
“relevant authority: section 357(7) to (9)
relevant Director: section 352(5A)”; and
(b) ’.
No. 221, in schedule 8, page 99, line 4, at end insert—
‘114A After section 449 (pseudonyms) insert—
“449A Staff of relevant Directors: pseudonyms
(1) This section applies to a member of the staff of the relevant Director if—
(a) the member is to exercise a function as a member of that staff under, or in relation to, Part 8; and
(b) it is necessary or expedient for the purpose of exercising that function for the member of staff to identify himself by name.
(2) The relevant Director may direct that such a member of staff may for that purpose identify himself by means of a pseudonym.
(3) For the purposes of any proceedings or application under this Act, a certificate signed by the relevant Director which sufficiently identifies the member of staff by reference to the pseudonym is conclusive evidence that that member of staff is authorised to use the pseudonym.
(4) In any proceedings or application under this Act a member of the staff of the relevant Director in respect of whom a direction under this section is in force must not be asked (and if asked is not required to answer) any question which is likely to reveal his true identity.
(5) The relevant Director may not delegate the exercise of his functions under this section or otherwise authorise another person to exercise those functions on his behalf.
(6) In this section “relevant Director” has the meaning given by section 352(5A).”’.
No. 222, in schedule 8, page 99, line 4, at end insert—
‘114B (1) Section 459 (orders and regulations) is amended as follows.
(2) In subsection (3) after “instrument” insert “(other than the power of the Advocate General for Northern Ireland to make an order under section 377A(5) which is exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573 (N.I.12)))”.
(3) In subsection (4)(a) after “377(4)” insert “, 377A(5)”.
(4) After subsection (6)(a) insert—
“(aa) by the Attorney General or the Advocate General for Northern Ireland under section 377A(5) unless a draft of the order has been laid before Parliament and approved by a resolution of each House;”.
(5) After subsection (7) insert—
“(8) In this section references to the Advocate General for Northern Ireland are to be read, before the coming into force of section 27(1) of the Justice (Northern Ireland) Act 2002 (c. 26), as references to the Attorney General for Northern Ireland.”’.
No. 223, in schedule 8, page 100, leave out lines 6 to 11.
No. 224, in schedule 8, page 100, line 12, leave out ‘References’ and insert ‘The reference’.
No. 225, in schedule 8, page 100, line 13, leave out ‘are’ and insert ‘is’.
No. 226, in schedule 8, page 100, line 14, leave out ‘references’ and insert ‘a reference’.
No. 227, in schedule 8, page 100, line 31, after ‘Part 5’, insert ‘or 8’.
No. 228, in schedule 8, page 100, line 34, after ‘Part 5’, insert ‘or 8’.
No. 229, in schedule 8, page 100, line 37, after ‘Part 5’, insert ‘or 8’.
No. 230, in schedule 8, page 101, line 31, leave out from beginning to end of line 32 and insert—
(1) Section 443 (enforcement in different parts of the United Kingdom) is amended as follows.
(2) In subsection (3)(a) for “and the Director” substitute “, SOCA and the relevant Director”.
(3) After subsection (4) insert—
“(5) In this section “relevant Director” has the meaning given by section 352(5A).”’.
No. 231, in schedule 8, page 101, line 36, after ‘SOCA’, insert
‘, the Director of Public Prosecutions, the Director of Public Prosecutions for Northern Ireland, the Director of Revenue and Customs Prosecutions’.
No. 182, in schedule 8, page 103, line 6, at end insert—
‘In section 51(1A) of that Act (interpretation) omit “, subject to section 33(1A) of this Act,”.’.
No. 183, in schedule 8, page 103, line 32, leave out from ‘paragraph’ to ‘conferred’ in line 33 and insert ‘(fe), insert—
(ff) to discharge such duties as are’.
No. 232, in schedule 8, page 103, line 34, after ‘Part 5’, insert ‘or 8’.
No. 233, in schedule 8, page 103, line 35, after ‘conduct’, insert
‘, civil recovery investigations and disclosure orders in relation to confiscation investigations’.
No. 234, in schedule 8, page 104, line 15, after ‘Part 5’, insert ‘or 8’.
No. 235, in schedule 8, page 104, line 16, after ‘conduct’, insert
‘, civil recovery investigations and disclosure orders in relation to confiscation investigations’.
No. 236, in schedule 8, page 105, line 8, at end insert—
‘Northern Ireland Act 1998 (c. 47)
(1) In section 75(4A) of the Northern Ireland Act 1998 (c. 47) (statutory duty on public authorities) after “offences” insert “or any of the functions conferred on him by, or in relation to, Part 5 or 8 of the Proceeds of Crime Act 2002 (c. 29) (civil recovery of the proceeds etc. of unlawful conduct, civil recovery investigations and disclosure orders in relation to confiscation investigations)”.
(2) After section 76(10) of that Act (discrimination by public authorities) insert—
“(11) The reference in subsection (1) to the functions of the Director of Public Prosecutions for Northern Ireland does not include any of the functions conferred on him by, or in relation to, Part 5 or 8 of the Proceeds of Crime Act 2002 (c. 29) (civil recovery of the proceeds etc. of unlawful conduct, civil recovery investigations and disclosure orders in relation to confiscation investigations).”’.
No. 184, in schedule 8, page 105, line 8, at end insert—
‘After section 60ZA(6) of that Act (SOCA) insert—
“(7) An agreement or order under this section must not provide for procedures in relation to so much of any complaint or matter as relates to any functions of the Agency mentioned in section 2A of the Serious Organised Crime and Police Act 2005 (c. 15) (functions as to the recovery of assets).”’.
No. 185, in schedule 8, page 105, line 15, at end insert—
‘Police Reform Act 2002 (c. 30)
After section 10(8) of the Police Reform Act 2002 (c. 30) (general functions of the Independent Police Complaints Commission) insert—
“(9) Nothing in this Part shall confer any function on the Commission in relation to so much of any complaint, conduct matter or DSI matter as relates to—
(a) any functions of the Serious Organised Crime Agency mentioned in section 2A of the Serious Organised Crime and Police Act 2005 (c. 15) (functions as to the recovery of assets); or
(b) the functions of the National Policing Improvement Agency under section 3 of the Proceeds of Crime Act 2002 (c. 29) (accreditation and training of financial investigators).”
After section 26A(4) of that Act (SOCA) insert—
“(4A) An agreement under this section must not provide for procedures in relation to so much of any complaint, conduct matter or DSI matter as relates to any functions of the Agency mentioned in section 2A of the Serious Organised Crime and Police Act 2005 (c. 15) (functions as to the recovery of assets).”
After section 26B(4) of that Act (National Policing Improvement Agency) insert—
“(4A) An agreement under this section must not provide for procedures in relation to so much of any complaint, conduct matter or DSI matter as relates to the functions of the Agency under section 3 of the Proceeds of Crime Act 2002 (c. 29) (accreditation and training of financial investigators).”’.
No. 237, in schedule 8, page 105, line 27, after ‘Part 5’, insert ‘or 8’.
No. 238, in schedule 8, page 105, line 28, after ‘conduct’, insert
‘, civil recovery investigations and disclosure orders in relation to confiscation investigations’.
No. 186, in schedule 8, page 105, line 28, at end insert—
‘In section 37(1) of that Act (prosecutors) after “section 35” insert “(including any function mentioned in subsection (4A) of that section)”.’.
No. 187, in schedule 8, page 106, line 31, at end insert—
(1) Section 5 of that Act (SOCA’s general powers) is amended as follows.
(2) In subsection (2)(d) after “or 3” insert “or mentioned in section 2A,”.
(3) In subsection (3) after “3” insert “or mentioned in section 2A”.
(4) In subsection (4) after “section” insert “2A or”.’.—[Mr. Coaker.]
Schedule 8, as amended, agreed to.
Further consideration adjourned.—[Mr. Alan Campbell.]
Adjourned accordingly at sixteen minutes to Four o’clock till Tuesday 10 July at half-past Ten o’clock.
 
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