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|Session 2007 - 08|
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Public Bill Committee Debates
Draft Proceeds of Crime Act 2002 (Disclosure of Information) Order 2008
The Committee consisted of the following Members:
Mark Etherton, Committee Clerk
attended the Committee
Fifth Delegated Legislation Committee
Tuesday 24 June 2008
[Mr. John Bercow in the Chair]
Draft Proceeds of Crime Act 2002 (Disclosure of Information) Order 2008
The Parliamentary Under-Secretary of State for the Home Department (Mr. Vernon Coaker): I beg to move,
That the Committee has considered the draft Proceeds of Crime Act 2002 (Disclosure of Information) Order 2008.
The Chairman: With this it will be convenient to consider the draft Serious Organised Crime and Police Act 2005 (Disclosure of Information by SOCA) Order 2008.
Mr. Coaker: Mr. Bercow, good afternoon. I welcome you to the Chair of the Committee. We have done a number of Committees, Adjournment debates and other things together, so it is good to see you in the Chair. I welcome the hon. Member for Hornchurchwe have a close political and professional relationship nowand all other hon. Members to the Committee this afternoon.
The two orders are necessary due to recent amendments made by the Serious Crime Act 2007 to the Proceeds of Crime Act 2002 and related assets recovery legislation. The Assets Recovery Agency has now been abolished, and some of its functions were transferred in April to other agencies, notably the Serious Organised Crime Agency. The orders are consequential upon those amendments and serve the single purpose of ensuring that disclosure provisions that previously related to the Assets Recovery Agencys work now relate to the agencies that inherited its functions.
Previously, the Assets Recovery Agency was the one body in England, Wales and Northern Ireland that could investigate and pursue proceedings known as civil recovery. The civil recovery regime in the Proceeds of Crime Act 2002 provides for the recovery of property that has been obtained directly or indirectly through crime. Those are, as the name suggests, civil proceedings before the High Court. They do not require a criminal conviction, as the action is against the property rather than the person. To assist the Assets Recovery Agency in its work, part 10 of the Proceeds of Crime Act provided for the disclosure of information to and by its director. The information that could be disclosed to the director had to be from an individual listed in the Act, such as a constable, and the disclosure had to be for the purpose of the exercise by the director of his functions under the Proceeds of Crime Act. The information that could be disclosed by the director to another body had to be for a purpose listed in the Act, such as for the purposes of a criminal investigation.
Notably, it was recognised in the Proceeds of Crime Act that the lists of persons who were able to disclose information to the Assets Recovery Agency might not be definitive. The Secretary of State was therefore provided
The bodies that have inherited the civil recovery functions in England and Wales are, effectively, the Serious Organised Crime Agency, the Crown Prosecution Service, the Serious Fraud Office and the Revenue and Customs Prosecution Office. In Northern Ireland they are, effectively, the Serious Organised Crime Agency, the Serious Fraud Office and the Public Prosecution Service for Northern Ireland. The provisions for the disclosure of information in part 10 of the Proceeds of Crime Act 2002 were amended by the Serious Crime Act 2007 to refer to the Director of Public Prosecutions, the director of the Serious Fraud Office and the Director of Public Prosecutions for Northern Ireland. Equivalent amendments were also made to relevant provisions in the Commissioners for Revenue and Customs Act 2005 for the Revenue and Customs Prosecution Office and to the Serious Organised Crime and Police Act 2005 for SOCA. As I said earlier, that left outstanding the additions to the information gateways made by the Proceeds of Crime Act 2002 (Disclosure of Information) Order 2003, which are to be dealt with by the orders before the Committee today.
So, the orders ensure that SOCA and others that inherit the civil recovery functions have the same information gateways as were available to the Assets Recovery Agency. There is no change in policy. The orders are not giving SOCA or any other agency powers or functions that were not previously available to the Assets Recovery Agency.
On one point of clarification, the drafting of the orders led some in the other place to think that we were adding to the functions of SOCA and the directors, but that is not the case. The reference to functions is an oddity of the Proceeds of Crime Act 2002 and the Serious Organised Crime and Police Act 2005, to the provisions of which we are adding. Those acts refer to making a disclosure for a specified function, so the orders also talk in terms of functions. The orders do not give SOCA or the directors the function of protecting public health, but, in fact, add to their powers of disclosure so that they can make a disclosure for the purpose of protecting public health.
A disclosure might be necessary if SOCA or one of the directors came across a stockpile of illegal medicines as part of one of its financial investigations, which it needed to report to the appropriate authorities, such as the Medicines and Healthcare products Regulatory Agency. Neither do the orders give SOCA and the directors the functions of the Financial Services Authority; they recognise that SOCA and the directors might hold information relevant to the regulatory and supervisory functions of the Financial Services Authority. For example,
The Committee should note that the orders do not cover the Revenue and Customs Prosecutions Office, which also inherited civil recovery functions. It is covered by other legislation. It and the Attorney-Generals Office have been made aware of that issue and will take action, legislative or otherwise, as required.
James Brokenshire (Hornchurch) (Con): Thank you, Mr. Bercow, I welcome you to the Chair. It is a pleasure to serve under your chairmanship on this further occasion. I also welcome the Minister and other Committee members.
As I understand it, the orders before us this afternoon relate merely to certain technical changes arising from the transfer of the functions of the Assets Recovery Agency to various bodies, including SOCA, the CPS, the Serious Fraud Office and the Revenue and Customs Prosecutions Office. The Minister has said clearly, and we have obviously heard, that there has not been a change of policy and that, in essence, the orders purpose is to reflect the powers that the Assets Recovery Agency had in the successor bodies, not to extend those powers any further.
We are considering two statutory instruments as part of our debate this afternoon. The Draft Proceeds of Crime Act 2002 (Disclosure of Information) Order 2008 is, as the Minister identified, largely a replication of the Proceeds of Crime Act 2002 (Disclosure of Information) Order 2003in other words, the predecessor order that granted to the old Assets Recovery Agency various gateways to give information to various bodies. As far as I can see, there are minor changes only; we are now talking about directors of the various bodies and there is a reference to the Gambling Commission rather than the Gaming Board, reflecting the change in the circumstances and constitutions of the relevant bodies over the time.
The germane issue is that the order is coming before us today, when the powers, duties and responsibilities of the Assets Recovery Agency were transferred to the successor organisations in April this year. It is interesting to note that, when questioned as to what had been happening since April, Lord West of Spithead in Grand Committee in the other place said:
On investigations that have been taking place for three or four months, no information is currently being disclosed or obtained under the powers given by the orders. Clearly, there is no power to do so.[Official Report, House of Lords, 17 June 2008; Vol. 702, c. GC374.]
There is a relevant question to be asked: if this is so important, why has it come before us only now? What has been happening in those months? To what extent have investigations been hindered by this information sharing authority not having been in place since the inception of the new arrangements from 1 April? If the Government consider these gateway powers to be important, they should have been in place from the outset. If they are not so important, why are they necessary?
There is also the issue of the functions that the Minister has referred to for protecting public health, and the functions of the Financial Services Authority, which, as he rightly points out, is a designation of what the Secretary of State regards as functions of a public nature, which would allow the exchange of information. There is one question in relation to the protection of public health. I note the example that he gave to show why information sharing might be appropriate and the information that would come to the attention of relevant bodies involved in recovering the proceeds of crime. With whom would information relating to protecting public health be shared? The schedule designates various different authorities to whom information can be shared. Will he confirm and explain where that information sharing on public health might be passed, and whether there is a need to designate any particular individuals or office holders within any related health service bodies? It is quite probable that there will be, but that is not clear in the statutory instrument. Indeed, it was not clear in the original statutory instrument in 2003, but I am sure that he will provide some sort of answer in relation to those provisions.
The first order is a replication of existing powers and appears to provide a technical, limited sharing and gateway of information in relation to the Proceeds of Crime Act 2002, as amended by the changed arrangements under the ARAs functions. It would be helpful in this context if the Minister confirmed what transparency and what information would be forthcoming, in terms of an assessment of the conduct of the new functions in those relevant bodies. It was clear that there was a real problem with the ARA as a body in the first place, hence the reason why we have made the changes and why we are now considering the implications of those changes. The ARA has not performed, hence the transfer of its functions to successor agencies. Concerns remain over the ability of the House to consider how each of the bodies is functioning, albeit that that is probably slightly beyond the scope of the orders before us. Similarly, I shall not stray into the wider area of data sharing in its broader sense. That would not be best served by a debate this afternoon, but it is still relevant to how we consider all of these information gateways and the sharing of data and information.
The Opposition share the Governments commitment to ensure that the proceeds of crime are properly enforced against and that criminals cannot siphon away cash or other assets in a manner that puts them beyond justicethey need to be followed through. If the provision of information by certain specified bodies is thought appropriate for allowing that recovery, or if any other illegality is highlighted by that within the strict terms of the order, that is something that should be properly followed through.
The second order is the Serious Organised Crime and Police Act 2005 (Disclosure of Information by SOCA) Order 2008. While I note what the Minister saidthat this should not extend powers; that it is not intended as a means of taking more than was previously in the functions of the ARAthe order requires further scrutiny. In essence, the order provides for the Serious Organised Crime Agency to disclose information for specified purposes, and adds to those purposes the public functions of protecting public health, and the functions of the Financial Services Authority under the Financial Services
Information obtained by SOCA in connection with the exercise of any of its functions may be disclosed by SOCA if the disclosure is for any permitted purposes.
This order seeks to add the two public functions to which I referred to the list of permitted purposes. However, the fundamental distinction here is that this order is not limited to the functions of the Assets Recovery Agency. In the previous order it is made clear that the order relates to those functions, but section 33(1) does not have that qualification, and the amendments that were put in place by virtue of paragraph 172 of schedule 8 of the Serious Crime Act 2007 did not touch that. Therefore, the order extends SOCAs powers in so far as it extends the Ministers intentions, because it does not limit the gatewaythe authorisation powerpurely and simply to the functions of the Assets Recovery Agency. It extends it to all SOCAs functions. I do not think that the Government necessarily intended to do that by virtue of the order. Therefore, having heard what the Minister said about the order seeking not to change matters but to limit them, to mirror what the Assets Recovery Agency was doing and ring-fence the powers in that way, I believe that the order needs to be looked at again. I argue that if the order was intended for the purposes that the Minister described, it should be made clear in paragraph 2 of the order that the
following functions are designated for the purposes of section 33 of the Serious Organised Crime and Police Act 2005
solely for the purposes of the functions that SOCA has gained under the Assets Recovery Agency transfer. I understand from the Minister that what was intended was to limit the powers to that extent, but the current drafting covers all SOCAs functions, not simply those that it has inherited from the Assets Recovery Agency.
I therefore remain concerned about the drafting of the order. I do not think, from what we have heard from the Minister, that the drafting conveys what was intended. I therefore hope that in his response the Minister is able confirm the Governments policy intention, and that if the order goes beyond that, the Government will reflect on that and introduce a further order, restricting the powers to those inherited from the Assets Recovery Agency.
Tom Brake (Carshalton and Wallington) (LD): It is a pleasure once again to serve under your chairmanship, Mr. Bercow. I will keep my remarks brief.
The Minister is honourable and decent. He has made it clear that we are talking about a simple transfer of functions and that there is no intention to extend the scope of the powers. I am sure that he will be able to give us an undertaking that at no point in the future would the orders be used for the purpose of extending the powers. It is simply about ensuring that the transfer of functions that has been required since the demise of the Assets Recovery Agency takes place. I know that we cannot open a debate about that agencys past, but it may be useful if the Minister were to remind Members
The hon. Member for Hornchurch has already raised a point that it would be useful for the Minister to comment on, which is the timing of these orders and whether they are now before us as a result of an omission, an oversight or an afterthought. I am not sure which of those it is, but I hope that the Minister will be able to clarify that and, as the hon. Gentleman said, explain to hon. Members whether there have been any consequences attached to this omission, oversight or afterthought.
Mr. Coaker: I thank both the hon. Member for Hornchurch (James Brokenshire) and the hon. Member for Carshalton and Wallington (Tom Brake) for their usual helpful comments. I mean that; I did not mean to sound sarcastic. I do not do sarcasm very well.
Mr. Crispin Blunt (Reigate) (Con): Not like the Minister for Security, Counter-Terrorism, Crime and Policing.
I would like to respond to the point that both hon. Gentlemen made about the delay, the interregnum, between April and now, with respect to these orders. It is important to say that no information is being disclosed or obtained at the moment under the powers given by the orders, because there is no power to do so. As no information is being disclosed or obtained, there has been no question of any information arising in the courts. So, as far as we are aware, there has been no problem either of an investigation being held up or of a problem in the courts, because the power does not exist for the courts to act with respect to these orders. That is why we are introducing them now, to ensure that the 2003 order is brought into place, rather than what happened with the Serious Crime Act 2007, which just amended part 10 of the Proceeds of Crime Act 2002. Of course, because the 2007 Act amended part 10 of the 2002 Act, the courts may well hear cases under that part of the 2002 Act, but obviously not with respect to these orders, because if they are passed today it will only be from today that the courts will have the power to act under them.
Having passed the Serious Crime Act 2007 and amended certain parts of the Proceeds of Crime Act 2002, we took the opportunity to take account of the abolition of the ARA. The hon. Member for Hornchurch has already pointed out one of the advantages of taking some time to consider the order that extended the original list. It gave us the opportunity to look at that list, and we have updated it. For example, as the hon. Gentleman pointed out, the Gaming Board for Great Britain is now the Gambling Commission and the Secretary of States functions under the Dual Use Items (Export Control) Regulations 2000 are now covered in the Export of Goods, Transfer of Technology and Provision of Technical Assistance (Control) Order 2003. So it gave us the opportunity to update that particular order. As I say, if we pass these orders today in this Committee, that will be another significant change that will help the courts.
The hon. Member for Hornchurch referred to the assessment of conduct. SOCA and the other agencies are of course subject to various reports to Parliament. They are often called before Parliament; they are accountable to their professional bodies; they have legal status, and SOCA, as we know, publishes an annual report, as do some of the other prosecution agencies. So they are accountable in that sense.
As for who this information may be disclosed to, I say to the hon. Member for Hornchurch that there is no particular person to whom the information could be disclosed. It would simply be disclosed to someone who is in the business of protecting public health. I gave the example of a SOCA investigation finding out that there were problems with respect to the abuse of drugs; it would be appropriate for SOCA to pass that information on to somebody within public health who deals with that issue. Another example might be a SOCA investigation that revealed various problems of hygiene in particular restaurants. Those problems would be environmental health matters and that information would be passed on to the relevant bodies. In answer to the hon. Gentlemans question, information would be passed on to somebody who has responsibility for public health and who is relevant to a particular investigation that SOCA or one of the other bodies had conducted.
I say seriously to the hon. Gentleman that it is not our intention to mislead the Committee on the transfer of powers to SOCA in the second order. We have extended the disclosure powers of SOCA and the directors because they have taken over powers from the ARA. The powers of SOCA will not be limited to its asset recovery functions, which is the point that he made. As this is a matter of genuine concern for him, we will take away his point for consideration. If it is necessary, I will come back with a further order in consultation with him. I am not guaranteeing that I will do that, but I will look at the point that he has raised and come back to him with a further order if necessary.
The hon. Gentleman knows that I take these issues seriously in Committee and that I do not just use them to bombard him. Similar issues were raised about samurai swords in a Committee like this. I promised to consider those issues and, as he knows, I am coming back with a couple of further amendments to change that legislation. I hope that he takes my assurance in the spirit that it is meant.
James Brokenshire: I thank the Minister for that confirmation. I know from our previous dealings that he considers issues such as these very carefully. I think that when he examines the order he will see that it is extended in a way that the lead order is limited. I am grateful to him for confirming that he will look at this issue and introduce a further order if appropriate. I want to put it on the record that we look forward to receiving that information in due course and to examining the issue further.
Mr. Coaker: I do not have anything further to add. Both orders are important and, with the commitment that I have made, I commend them to the Committee.
Question put and agreed to.
That the Committee has considered the draft Proceeds of Crime Act 2002 (Disclosure of Information) Order 2008.
DRAFT SERIOUS ORGANISED CRIME AND POLICE ACT 2005 (DISCLOSURE OF INFORMATION BY SOCA) ORDER 2008
That the Committee has considered the draft Serious Organised Crime and Police Act 2005 (Disclosure of Information by SOCA) Order 2008.[Mr. Coaker.]
Committee rose at three minutes to Five oclock.
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