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Baroness Anelay of St Johns moved Amendment No. 70:

The noble Baroness said: In moving Amendment No. 70, which stands in my name and that of the noble Lord, Lord Dholakia, I shall speak also to Amendment No. 71, standing in my name.

Amendment No. 70 would require that where the Treasury provides for a function conferred on a constable to be exercised by a Customs officer, or a person acting under the direction of such an officer, he would need to follow guidance issued by the Secretary of State.

Amendment No. 71 prompts clarification of the broad powers of the Secretary of State by Clause 27(2), which provide that functions conferred on him or on a

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constable under Sections 13 to 27 may be exercised by a prescribed person; in other words, more or less anyone.

Paragraph 81 of the Explanatory Notes states:

    "Subsection (2) provides for the territorial authority to confer similar powers on other authorities in the future, should such other authorities develop a role in the execution of mutual legal assistance requests".

That is extremely vague. The powers allow the Secretary of State to confer these functions on anyone. That may well be flexible and what the Government require. We require the Government to clarify the types of bodies and persons they are thinking about at this stage.

Finally, there is a drafting point that the Government might agree to look at. Clause 27(2) allows the Secretary of State to provide that,

    "any function conferred on him under this group of sections",

may be exercisable by someone else. Does that extend the power under Clause 27(2) to confer functions on others? Thus the Secretary of State could, by order under Subsection (2), delegate his power to confer functions on others to someone else. The matter gets very complicated. Perhaps the Government might want to include the words "other than this subsection". I beg to move.

Lord Clinton-Davis: In relation to Amendment No. 70, I ask the noble Baroness where have the words,

    "and guidance issued by the Secretary of State",

appeared in other legislation? I do not think that they ever have.

6 p.m.

Lord Goldsmith: The purpose of the amendment is to require the Secretary of State to issue guidance describing the circumstances in which a Customs officer might exercise powers under Clauses 13 to 26. If I have misunderstood, I should be pleased to be corrected by the noble Baroness, but I do not think that I need to explain why it is thought essential to be able to confer powers on Customs. I hope that the answer that I gave in debate on a previous amendment explained that sufficiently clearly.

There is no need for further guidance. The conditions will be prescribed by the order, which will be binding. No doubt it will be open to the Secretary of State to issue guidance on that point if that seems appropriate, but it is unnecessary to refer to that in the Bill. Of course, guidance will be issued covering all of the Bill's new provisions.

Amendment No. 71 would delete Clause 27(2). That would also restrict a key enabling provision that is intended to allow authorities to take on executing powers in the same way as is provided for Customs. The new power will give the Government flexibility to effect greater direct transmission—a subject which we have discussed—should that be desirable in future. No other authorities have been identified at this stage, but a review of our mutual legal assistance system more generally—which is currently in progress—may

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conclude that such powers should be conferred on the Crown Prosecution Service or Serious Fraud Office; for example, to enable them to handle incoming requests. However, at present they do not want such powers.

I understand that the power was considered by the Select Committee on Delegated Powers and Regulatory Reform, which accepted the department's explanation that we needed to provide flexibility for the future and found the power to be appropriately delegated.

Clause 27(2) will not apply to the powers under Clause 27(1), because Amendments Nos. 67 and 72, one of which has been accepted and the other of which I have spoken to, amend Clause 27(1)(a).

Baroness Anelay of St Johns: Perhaps I may begin by referring to the question posed by the noble Lord, Lord Clinton-Davis. I shall certainly not be able to point him to chapter and verse of Acts in which guidance has been included in the Bill. I am aware that Governments of any colour balk at the idea of including guidelines in Bills and that Opposition parties always want to include them. However, all Governments have passed Bills that make reference to guidelines; indeed, one part of the Courts Bill refers to guidelines, and we hope to add more—I give notice of that intention. So such references exist, but I regret that I cannot steer the noble Lord to the precise reference. Perhaps I ought to ask the Library for at least one example to satisfy him.

I am grateful to the noble and learned Lord for his explanation. His point about the drafting is absolutely right: changes to Clause 27 have dealt with that. On Amendment No. 71, he says that the Government are conducting a review and, as a result, other bodies may be identified—the CPS or SFO, for example, although he says that at present they do not seek or welcome such status. He puts his finger on our problem with all of this, which is that whether it is the framework decision or whatever, so much of what will effectively govern the working of the Bill when enacted is not fully fleshed out. We are having to agree to procedures that may be modified in future. We want to ensure that they are modified in such a way as to act properly to ensure judicial co-operation. We are not trying to hinder that. We are trying to make it more straightforward while ensuring that proper safeguards are in place. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 71 not moved.]

Lord Goldsmith moved Amendments Nos. 72 and 73:

    Page 15, line 26, leave out "this group of sections" and insert "sections 13 to 26"

    Page 15, line 28, leave out "this group of" and insert "those"

On Question, amendments agreed to.

Clause 27, as amended, agreed to.

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Clause 28 [Interpretation of Chapter 2]:

Lord Goodhart moved Amendment No. 73A:

    Page 15, line 36, at end insert—

""freezing order" means any measure taken by a competent judicial authority in the issuing State in order provisionally to prevent the destruction, transformation, moving, transfer or disposal of property that could be subject to confiscation or evidence,"

The noble Lord said: This is largely a probing amendment. It probes in two different respects. First, the amendment repeats the definition of a freezing order, which appears in Article 2(c) of the draft framework decision. That states:

    "'freezing order' shall mean any measure taken by a competent judicial authority in the issuing State in order provisionally to prevent the destruction, transformation, moving, transfer or disposal of property that could be subject to confiscation or evidence".

There is no separate definition of "freezing order" in the Bill. Clause 28(1) states:

    "'domestic freezing order' has the meaning given by Section 10(2)".

Clause 10(2) states:

    "A domestic freezing order is an order for protecting evidence which is in the participating country pending its transfer to the United Kingdom".

Clause 28(1) defines "overseas freezing order" as having the meaning given to it by Section 20. Clause 20(2) states:

    "An overseas freezing order is an order—

    (a) for protecting, pending its transfer to the participating country, evidence which is in the United Kingdom".

Are the Government satisfied that the word "prevent" covers all the nouns referred to in Article 2(c) of the framework decision; that is: destruction; transformation; moving; transfer or disposal of property? I suspect that it probably does, and that it protects by preventing those things. However, it seems to me that "protect" could be wider than the definition in Article 2(c). If the evidence is something which is perishable by virtue of natural decay, unless it is literally frozen, "protect" would seem to cover taking steps to preserve an item of evidence by freezing it, but the wording of the framework decision would not. Is that seen as something that would create problems?

My second point is one which I anticipate the noble and learned Lord may not be able to answer today. I shall be happy to have it dealt with later in writing. Under the framework decision, a freezing order can be used to protect property not only for the purposes of evidence but for the purposes of making it subject to a confiscation order.

The Bill contains no reference to confiscation. So I wonder what is the position in regard to a freezing order for property which might be subject to confiscation. I have looked at Section 74 of the Proceeds of Crime Act, which relates to England; and there are equivalent provisions for Scotland and Northern Ireland. That appears to provide for the equivalent of a domestic freezing order where a confiscation order is being sought. But I cannot find in the Proceeds of Crime Act or anywhere else a provision for the equivalent of an overseas freezing

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order where confiscation proceedings may occur outside the United Kingdom and an order is sought in the United Kingdom for freezing that property subject to the making of a confiscation order. Is there such a provision anywhere in legislation, or have I overlooked it in the Proceeds of Crime Act? If not, is not one needed, and should it not be included in another part of the Bill?

I see no equivalent to a domestic freezing order in proceedings for a civil recovery order under Part 5 of the Proceeds of Crime Act—although this could well be because a civil recovery order cannot be regarded as confiscation within the meaning of the framework decision. I beg to move.

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