Clause
79
Orders
of the Secretary of State and the Scottish
Ministers
Amendment
proposed: No. 188, in clause 79, page 43, line 18, after
‘Secretary of State’, insert ‘, the
Treasury’.—[Mr.
Coaker.]
The
Chairman:
With this it will be convenient to discuss the
following:
Government
amendments Nos. 189 to
191.
Government new
clause 14—Disclosure of information by Revenue and
Customs.
Government
amendment No.
197.
Amendment
agreed
to.
Amendments
made: No. 189, in clause 79, page 43, line 20, after
‘Secretary of State’, insert ‘or the
Treasury’.
No.
190, in
clause 79, page 43, line 25, after
‘Secretary of State’, insert
‘or (as the case may be) the
Treasury’.—[Mr.
Coaker.]
Mr.
Browne:
I beg to move amendment No. 12, in
clause 79, page 43, line 26, after
‘58(3)’, insert ‘,
63,’.
The
Chairman:
With this it will be convenient to discuss
amendment
No. 11, in
clause 79, page 43, line 34, leave
out ‘or
63’.
Mr.
Browne:
These amendments, taken together, would require
affirmative resolution for the Secretary of State to be able to specify
an anti-fraud organisation, such as the Credit Industry Fraud Avoidance
Scheme, under clause 63. Clause 63 currently allows the Secretary of
State to specify by negative resolution an anti-fraud organisation to
which a public authority may disclose information. In the other place
there was some concern at the arrangements surrounding the Secretary of
State’s ability to designate anti-fraud organisations, and what
the criteria for acceptability would be. As sensitive issues of
privacy, secrecy and security surround these data matching powers, and
the likelihood is that only a handful of organisations will be capable
of appropriately undertaking the task, the change from negative to
affirmative resolution will allow an appropriate level of parliamentary
scrutiny.
On Second
Reading in the House of Commons, the Government repeatedly indicated
that they would not wish to have a monopoly of one organisation
processing this data sharing and going forward with this initiative.
Although that is welcome, it should be within the remit of Parliament
to scrutinise and approve other organisations that the Secretary of
State may name. That is why I have tabled amendments Nos. 12
and 11.
Mr.
Hogg:
I rise to support the amendments on the general
basis of parliamentary control. Wherever I see provisions for an order,
I like to see it subject to an affirmative resolution procedure.
Whenever I see that provisions relate to the affirmative resolution
procedure, I say that such measures are not amendable and that they are
therefore bad news. If we have to have such procedures at all, why can
we not have the super-affirmative procedure? That might be going too
far on this occasion, so I back the
amendments.
James
Brokenshire:
The hon. Member for Taunton made an
interesting point on the mechanism by which anti-fraud organisations
will be specified. The Minister will be aware that concerns were
expressed about data sharing when we debated chapter 1 of part 3 of the
Bill. It is therefore relevant to consider having a mechanism to ensure
that specified organisations are subject to a greater degree of
scrutiny. Certainly, the positive procedure would appear to be the
appropriate way to provide an element of control. I therefore look
forward to the Minister’s
response.
Mr.
Coaker:
The provisions were scrutinised by the Delegated
Powers and Regulatory Reform Committee, which found that the negative
procedure for the specification of anti-fraud organisations represented
an
“appropriate level of
parliamentary scrutiny”.
As far as I am aware, the order-making
powers in the Bill conform to that Committee’s
report.
I
shall resist the amendments, but I should say something about clause 63
to explain why. Clause 63 provides a new legal gateway for those public
authorities that need
it to allow them to disclose information to a specified anti-fraud
organisation for the purpose of preventing fraud. The gateway is
necessary because fraudsters do not limit their criminal activities to
either the public or private sector; rather, they are opportunists who
seek to exploit any weaknesses that they can. Enabling public sector
organisations to share information in a clearly-defined and secure
way—namely, through a specified anti-fraud
organisation—will allow the private and public sector to work
together to prevent fraud and associated
losses. The amendments
would change the order-making power for specifying an anti-fraud
organisation from negative to affirmative resolution. The data-sharing
provisions in clauses 63 to 66 were scrutinised by the Delegated Powers
and Regulatory Reform Committee. It found that the negative resolution
for the specification of the anti-fraud organisation or organisations
represented
the
“appropriate level of
parliamentary scrutiny”.
As the Government seek to specify such
bodies, we will ensure that any anti-fraud organisation that
facilitates sharing between public authorities under clause 63 has
appropriate safeguards, not least so that it complies with the relevant
data protection and human rights
legislation.
In
addition, Government new clause 11 will introduce a requirement on the
Secretary of State to produce a code of practice. Public authorities
sharing information through a specified anti-fraud organisation will
have to have regard to the code when using their powers. The
specification process will in part depend on whether a potential
specified anti-fraud organisation operates in compliance with the code.
In short, specified anti-fraud organisations will have to prove that
they are capable of sharing and protecting information in an
appropriate manner.
In those circumstances, I
question the need for the specification of anti-fraud organisations to
be subject to affirmative resolution in both Houses of Parliament. That
would be an unnecessary degree of parliamentary oversight—that
view is shared by the Delegated Powers and Regulatory Reform Committee.
I therefore ask the hon. Member for Taunton to withdraw the
amendment.
Mr.
Browne:
Although I am grateful for the Minister’s
contribution, I wish to test the views of the Committee.
Question put, That the
amendment be
made:—
The
Committee divided: Ayes 4, Noes
9.
Division
No.
24
]
Question
accordingly negatived.
Amendment
proposed: 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).’.—[Mr.
Hogg.]
Question
put, That the amendment be
made:—
The
Committee divided: Ayes 4, Noes
9.
Division
No.
25
]
Question
accordingly negatived.
Amendments made: No.
200, in clause 79, page 43, line 34, after ‘29(6) or
(11),’, insert
‘(Powers to wind up:
supplementary),’.
No.
191, in
clause 79, page 43, line 34, leave
out ‘or 63’ and insert
‘, 63 or (Disclosure of
information by Revenue and Customs)’.—[Mr.
Coaker.]
Clause
79, as amended, ordered to stand part of the
Bill.
Clauses
80 and 81 ordered to stand part of the
Bill.
Schedule
14
Transitional
and transitory provisions and
savings
The
Parliamentary Under-Secretary of State for Justice (Maria
Eagle):
I beg to move amendment No. 170, in
schedule 14, page 121, line 41, at
end insert—
‘ (1) This
paragraph applies where, in any
proceedings—
(a) a
person (“D”) is charged in respect of the same act both
with an offence under section 41 and with the common law offence of
inciting the commission of another
offence;
(b) the only thing
preventing D from being found guilty of the offence under section 41 is
the fact that it has not been proved beyond reasonable doubt that the
time when the act took place was after the coming into force of that
section; and
(c) the only thing
preventing D from being found guilty of the common law offence is that
it has not been proved beyond reasonable doubt that that time was
before the coming into force of section
55.
(2) For the purpose of
determining D’s guilt it shall be conclusively presumed that the
time when the act took place was before the coming into force of
section
41.’.
I
hope to convince the Committee, in fairly short order, that the
amendment will make sensible changes to the present transitional
arrangements, as originally proposed by the Law Commission. The
transition provisions should set out more clearly what is to happen if
it cannot be determined when an act of intentional encouragement took
place.
The Committee
will remember from our debates on part 2 and clause 41 that the offence
of intentional encouragement was covered by the common law offence of
incitement, which criminalised it, but the clause now criminalises both
intentional encouragement and assistance; in other words, the
intentional encouragement bit of the offence, although new, is
continuous. It was an offence under the common law and it remains an
offence under the Bill. It should therefore be possible to prosecute an
act of intentional encouragement whenever it took place—before
or after the commencement of part 2.
The amendment provides that if
a person is charged in respect of his conduct with the common law
offence of incitement or of an offence under clause 41, and it is not
possible to establish whether the conduct took place before or after
the commencement of part
2—
Mr.
Hogg:
We put our hands
up.
Maria
Eagle:
The right hon. and learned Gentleman puts his hands
up, which means that I have probably convinced the Committee. This
might be the opportunity for me to sit
down.
11.30
am
James
Brokenshire:
The Minister has clearly set out her case for
the amendment, which is to ensure that there is no break in the way
that the provisions operate. I believe that is entirely understandable
and, therefore, we will not seek to oppose the
amendment.
Amendment
agreed
to.
Schedule
14, as amended, agreed
to.
Clause 82
ordered to stand part of the
Bill.
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