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Lord Goldsmith moved Amendments Nos. 60 and 61:

    Page 13, line 41, leave out from "be" to end of line 7 on page 14 and insert "retained by him until he is given a notice under subsection (2) or authorised to release it under section 25.

(2) If—
(a) the overseas freezing order was accompanied by a request for the evidence to be sent to a court or authority mentioned in section 13(2), or
(b) the territorial authority subsequently receives such a request,
the territorial authority may by notice require the constable to send the evidence to the court or authority that made the request."

On Question, amendments agreed to.

Clause 24, as amended, agreed to.

Clause 25 [Release of evidence held under the order]:

Lord Goldsmith moved Amendments Nos. 62 and 63:

    Page 14, line 11, leave out "24(2)(a)" and insert "24 if, in its opinion—

(a) the condition in section 21(6) or (7) is met, or
(b) the overseas freezing order has ceased to have effect in the participating country." Page 14, line 18, at end insert—

"( ) If the territorial authority decides not to give a notice under section 24(2) in respect of any evidence retained by a constable under that section, the authority must give the constable a notice authorising him to release the evidence."

On Question, amendments agreed to.

Clause 25, as amended, agreed to.

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Clause 26 [Powers under warrants]:

Lord Goldsmith moved Amendment No. 64:

    Page 15, line 1, after "sent" insert "to the territorial authority or"

On Question, amendment agreed to.

Clause 26, as amended, agreed to.

Clause 27 [Exercise of powers by others]:

Baroness Anelay of St Johns moved Amendment No. 65:

    Page 15, line 12, leave out "Treasury" and insert "Secretary of State"

The noble Baroness said: I tabled the amendment in response to an issue raised in the report of the Delegated Powers and Regulatory Reform Committee. Clause 27 contains an order-making power to provide that functions conferred on the territorial authority may be exercisable by the commissioners of Customs and Excise. In subsection (1), that order-making power is conferred on the Treasury and not on the Secretary of State. The second report from the Select Committee states in paragraph 7 that the department's memorandum does not explain why that power is exercisable by the Treasury rather than by the Secretary of State. It goes on say:

    "There may be reasons for this, and the Committee considers that the Government should provide an explanation for this form of delegation".

I agree. I tabled the amendment so that the noble and learned Lord can give that explanation to the Committee. I beg to move.

Lord Renton: Will the Minister consider some further reasons in this context, in addition to those given by my noble friend Lady Anelay? I concede that the expression "Treasury" has often been used in previous legislation. When I was a Home Office Minister years ago, I believe that I used it myself. However, the Treasury is merely a government department. Ministers should always be the people who are responsible for enforcing legislation when Parliament has required them to do so. The Bill should refer to those people. I do not know whether I am going too far or hoping for too much but I hope that the habit of calling on the Treasury to do something or to be given a power will cease and be replaced by a reference to the Chancellor of the Exchequer or a Secretary of State.

Of course, the expression, "Secretary of State" is a conveniently wide term. In the context of the Bill and of Clause 27 in particular, it would be more logical if the Secretary of State were given the power. The Secretary of State is referred to in subsection (1). Subsection (2) gives him a power, as do a number of earlier clauses. I hope that the noble and learned Lord will carefully consider this matter. It cannot harm the Bill to give the Secretary of State the power. It would be more logical and—dare I say—more precise.

Lord Goodhart: My Amendment No. 66 in this group raises exactly the same point. However, since tabling the amendment, I have read the Government's response, which is printed as Annex 2 to the fifth

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report of the Select Committee on Delegated Powers and Regulatory Reform, and I find that explanation adequate. Therefore, I would not in any event have moved my own amendment.

Lord Goldsmith: The phrase used by the noble Lord, Lord Renton, describing the Treasury as "merely a government department" is one which I noted with interest. I do not believe that any Minister, as the noble Lord has been, with responsibility for a spending department would ever describe the Treasury as "merely a government department".

As to the specific and perhaps somewhat constitutional point that the noble Lord, Lord Renton, raised about whether it is right to identify a particular person or body as "the Treasury" or "the Chancellor of the Exchequer", as the noble Lord himself indicated, the description of the Treasury is used in legislation—indeed, it is used in the 1990 Act. No doubt Treasury Ministers will read with interest what the noble Lord, Lord Renton, said in relation to that.

The principal point raised in the amendment of the noble Baroness, Lady Anelay, is whether it is right that these powers should be exercisable by the Treasury or by the Secretary of State. As Clause 27 makes clear, the powers relate to the exercise of powers by the commissioners of Customs and Excise or by an officer commissioned by Customs and Excise—in other words, a Customs officer.

The power for these orders is to be vested in the Treasury rather than the Secretary of State because the Treasury is the government department which has responsibility for Her Majesty's Customs and Excise. I do not believe that any question has been raised about whether it is right for Customs and Excise or Customs officers to have such powers. Indeed, the noble Baroness previously indicated that she wanted guidance as to where that power was to be found because it should be there. Therefore, the point is simply: who is the right person to exercise the powers??

The noble Lord, Lord Goodhart, is right to draw attention to the explanation given to the Delegated Powers and Regulatory Reform Committee. I understand that not only is the noble Lord content but that the committee has expressed itself content with the explanation given. I hope that that satisfies the noble Baroness.

I should have said that in this group I shall speak also to government Amendments Nos. 67, 68, 69, 72 and 73, all standing in the name of my noble friend Lord Filkin. I should put on the record what those amendments seek to achieve. They seek to expand the powers that may be conferred on Customs officers under this section. The first government amendment—Amendment No. 67—is the key and the others are essentially consequential.

The first amendment would make it possible to give Customs officers the power to apply for orders to freeze evidence overseas. As Customs officers could already be given powers to deal with incoming freezing orders, it seems sensible to ensure that they can deal

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also with outgoing requests. It is considered appropriate for Customs officers to be able to exercise such powers. For the same reasons, we consider it appropriate to ensure that Customs officers can apply for freezing orders as well as make requests for evidence through mutual legal assistance procedures.

The Committee will know that Customs investigators frequently take the lead on international investigations, particularly concerning drug trafficking. It is just as likely that, as would a police officer, a Customs officer will wish to apply for an order to freeze evidence that he knew was located in another EU country. Therefore, if there were an investigation into drug trafficking involving the United Kingdom and the Netherlands, where Customs were leading in the UK and relevant evidence—for example, papers relating to bank transactions—was believed to be located in the Netherlands, it would make sense for the Customs officer who had been in possession of full knowledge of the case to be able to apply for the order to freeze that evidence.

The other amendments in the group are consequential, apart from Amendment No. 128, which places the definition of a Customs officer in the definitions section.

Baroness Anelay of St Johns: I am grateful to the noble and learned Lord for his response. He said that I was asking whether this power should be exercised by the Treasury or by the Secretary of State. I did not pose that question; I was simply inviting him to place on the record, which he did, the Government's response to the point raised by the Select Committee. I am grateful. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 66 not moved.]

Lord Goldsmith moved Amendments Nos. 67 to 69:

    Page 15, line 15, leave out from "under" to "to" in line 16 and insert "sections 10, 11 and 13 to 26"

    Page 15, line 18, leave out "this group of" and insert "those"

    Page 15, line 19, leave out from "by" to "or" in line 21 and insert "a customs officer"

On Question, amendments agreed to.

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