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Lord Rooker: I hope to take all the amendments seriously. I appreciate that use has been made of the Sewel Motion. The decision has been made in Scotland that the legislation on these issues should be considered in Westminster. While that agreement has been freely entered into, it does not mean that we do not take the issues seriously because Westminster is to consider the legislation.
I am grateful to the noble Lord for the way he dealt with the amendments. I shall do my best to answer the points that he made. I shall try to keep to the same order, although I have a separate note that is out of kilter. I deal with Amendments Nos. 23 to 29 as a group. The Committee will be aware that Part 1 of Schedule 2 sets out the scheme relating to the monitoring of bank accounts of terrorist suspects for up to 90 days. This provides for real time disclosure of transactions and other information which will assist the police in their investigations.
The amendments tabled by the noble Lord in large part replicate the clause without changing the substance of the provision, but we believe that where they make substantive changes they are to the detriment of the functions. The principal change that is effected by the amendments is that the grounds that must be satisfied before an order can be made are amended and, in certain respects, the threshold is increased. The amendments remove the existing grounds to be satisfied. Those grounds are the same in substance as those required before the financial order
can be made under Schedule 6 of the Terrorism Act 2000. We are trying to mirror the Terrorism Act 2000 as much as possible.I accept the point about consideration of the Proceeds of Crime Bill in another place. It will be months before that Bill comes to this House—I am unable to forecast its shape—but the Terrorism Act is already on the statute book. We see great benefits to the courts, the police and the financial institutions in framing the powers in this Bill in terms similar to those in the Terrorism Act. In the course of an investigation the police may well use financial information to identify the existence of accounts held by a specified person and use an account monitoring order to obtain disclosure of information relating to the account.
The essence of the difference in approach between noble Lords and the Government is two-fold. First, the court would not be able to make an order unless satisfied that there were reasonable grounds to suspect the person specified in the order of a terrorist offence. Secondly, the police must demonstrate that the information to be obtained would be of substantial value to the terrorist investigation. Put in that way, on the surface they sound reasonable if one forgets the context of the Bill. As to the first point, it assumes that the person specified is suspected of an offence. That may well be true in the majority of cases, but it is not necessarily so. The police may well wish to obtain information relating to transactions on an account when the account holder—the specified person—may be innocent and is perhaps being used by others for terrorist purposes. The amendments tabled by the noble Lord would preclude the use of an order in such cases.
Even in those cases where the person specified is the suspect, the requirement to have reasonable grounds would preclude the use of this investigatory tool at an early stage in the investigation when it might not be possible to establish such reasonable grounds. We are not being unreasonable. These account monitoring orders are approved by a judge. This is not the Government and the police going off willy-nilly.
The purpose of the order is to help deal with terrorist crime and the financing of terrorists. We need the order to assist in the investigations of an inquiry. To that extent, of course, the investigation is the means of establishing the reasonable grounds for believing offences may be committed. In the early part of an inquiry, the reasonable grounds test may not be met, but it would be sufficient under the terms of the schedule for the judge to grant the order.
The second essential difference to which I referred—that the order must be of substantial value to the investigation—again imposes a different test in relation to the account monitoring orders than that which exists in the financial orders under the Terrorism Act at the moment. As I explained, we see real benefits in keeping the two procedures similar. To use a different formulation would lead to questions as to whether one is intended to be more stringent than the other.
In so far as the noble Lord seeks to raise the threshold for the granting of an order, the Government feel that this would greatly limit its value to the police in their important work of combating the funding of terrorism. We believe it is right that the police should demonstrate that the order will be of value—this is already provided for—but we do not think it should go any further than that.
As to Amendment No. 25, the purpose of the account monitoring order is to investigate a suspected terrorist without indicating to the holder of the account that he or she is being investigated. The amendment tabled by the noble Lord seeks to make clear that the police, when making the application, need not tell the person to whom the application relates. The Government agree that this should be the case. That is why the application is made ex parte without telling anyone else. The amendment does not take the matter any further at all. The police certainly do not need reminding that the whole purpose of the account monitoring order is to examine someone's finances without alerting that person to the investigation.
It may assist the Committee if I make clear that the court rules will require the court to serve notice of the order, if made, on the financial institution but not on the person specified in the application. I hope that this explanation satisfies the noble Lord.
Amendment No. 31 seeks to provide for the circumstances where a financial institution would want to refuse to provide information on the grounds of legal privilege. The information which would be disclosed by virtue of an account monitoring order would relate to the account—principally, details of transactions. We cannot see any occasion when such information would be legally privileged. We believe, therefore, that the amendment is unnecessary.
Amendment No. 32 seeks to spell out for Scotland what is inherent in the process by which the Court of Session comes to make a restraint order—in other words, the court must have reasonable grounds for suspecting that property will be disposed of prior to the conclusion of proceedings. This is another way of articulating the civil standard of proof on which the Court of Session has to be satisfied before it makes the restraint order.
As the Committee will know, a restraint order is in the nature of an interim or temporary provision. Any judge will require to be satisfied, on reasonable grounds, that the property concerned is likely to be disposed of, but it would be unusual—and unduly selective in this context—to make the express provision contemplated in the amendment.
I say that for the following reasons. First, the amendment concerns Scotland only, but there are comparable provisions for England and Wales at paragraph 2(2) of Schedule 2 to the Bill and for Northern Ireland at paragraph 4(2), and no amendment is proposed for those provisions. There is a clear implication that there is a Scottish speciality here when in fact there is none whatever.
Secondly, no comparable express requirements are proposed for Scotland in relation to the power of the Court of Session under paragraph 18(1) of Schedule 4 to the Terrorism Act 2000. This also concerns the power of the Court of Session to make a restraint order, so there is a further clear implication of a speciality for this particular power only, which is incorrect.
I am grateful for the opportunity to make clear that a court will have to be satisfied, on a civil standard of proof, that a restraint order is necessary because the property concerned may otherwise be disposed of in the interim. I hope that, in due course, noble Lords will withdraw those amendments.
Amendment No. 34 relates to the information order being in the public domain. The Bill provides that a person does not commit an offence if he has reasonable excuse for failing to disclose. This would be capable of covering a case where a person believed the information to be so widely available that it did not need to be passed to the police. The provision provides a way to assess whether a person should be relieved from his criminal liability—that is, was it reasonable for him to act as he did. This is the proper way to deal with what the amendment refers to as Xinformation in the public domain".
It is a wholly reasonable amendment for the noble Lord to table. In the case of wide-spread, publicly available information, it would be quite preposterous to consider that someone had committed an offence because he did not pick up a phone, ring the police and say, XBy the way, do you know about this?" I hope the Committee will think that there is an adequate defence.
Amendment No. 35 has a sensible aim. It seeks to ensure that a person who knows or suspects another of committing an offence does not tip off that other person to the fact that the police have been informed. The amendment also seeks to provide protection for a person disclosing information to the police should civil or criminal proceedings be brought against him for doing so.
The first aim is already adequately achieved by the existing provision in the Terrorism Act 2000. Section 18 provides that it is an offence for a person to enter into or become concerned in an arrangement which facilitates the retention or control by another of terrorist property. The Government believe that this provision addresses the concerns behind the noble Lord's amendment. After all, the whole schedule is an amendment to the Terrorism Act, and therefore we believe that that aim is taken care of.
I have come to the end of the amendments—although I may have missed one out—but the noble Lord raised the issue of an order not being varied by the applicant after the order is made. We agree with him. I regret that I am not sure which amendment this related to, but the provisions sought to be deleted provide for a variation of the description of the information in the application—that is, a variation before the order is made. Once made, the variation to
any order must be made by the court. I want to make that absolutely clear and I am glad that I have had the opportunity to put it on the record.
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