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
lastingnormallyan 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 States 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 Majestys
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
SOCAs staff
and
insert an appropriate
officer.
No.
206, in
schedule 8, page 97, line 23, leave
out
a member of
SOCAs 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
SOCAs staff
and
insert an appropriate
officer.
No.
209, in
schedule 8, page 97, line 26, leave
out
a member of
SOCAs staff
and
insert an appropriate
officer.
No.
210, in
schedule 8, page 97, line 29, leave
out member of SOCAs staff and insert
appropriate
officer.
No.
211, in
schedule 8, page 97, line 30, leave
out member of SOCAs 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 SOCAs 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
SOCAs 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
SOCAs staff
and
insert An appropriate
officer.
No.
214, in
schedule 8, page 97, line 34, leave
out
a member of
SOCAs 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 SOCAs 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 SOCAs 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 (SOCAs 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 oclock till Tuesday 10
July at half-past Ten
oclock.
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