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Lord Filkin: I agree with the noble Lord, Lord Renton: it is crucial that we ensure that the legislation is compatible. The Government believe that to be the case. The courts will always have to consider ECHR, whether or not it is on the face of the Bill. Clause 32(7) mirrors exactly the wording in the Proceeds of Crime Act.

As to the specific question of whether a person against whom a customer information order was potentially being levied could mount a challenge that it was disproportionate, the answer must in practice be no, because he or she would not be aware that one was being pursued, for the fairly apparent reason that these are essentially covert, rather than publicised, tracking of information measures.

Nevertheless, that does not raise an iota of concern that ECHR will not apply. It will apply, and the courts have to ensure that they are acting within it. I was trying to make a comparison as to why we felt in one case that it was right and proper to put the matter on the face of the Bill, but did not feel that it was necessary here.

Lord Goodhart: I am most grateful to the noble Lord. I shall read with some care what he has said, but I think that he will satisfy me on the point. If so, I do not intend to bring the matter back at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 96A not moved.]

Clause 32, as amended, agreed to.

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Clause 33 [Making, varying or discharging customer information orders]:

Viscount Bridgeman moved Amendment No. 96B:

    Page 19, line 23, leave out paragraph (a).

The noble Viscount said: In moving Amendment No. 96B, I shall speak also to Amendment No. 103A, which stands in my name and that of my noble friend Lady Anelay.

The amendment reflects the concern of the British Bankers' Association, which although strongly supportive of many parts of the Bill, is very concerned that an undue and excessive burden should not be placed on the financial community.

I seek clarification as to what Clause 33(2)(a) means. Do the Government envisage every financial institution in a certain country, or indeed in this country, responding to a customer information order? Would that not be too burdensome in practice? I shall put the matter in context: the BBA has more than 300 member banks in various countries and this is but one institution. In what situations will such an undertaking be necessary? How often would the paragraph be used? Would it allow fishing expeditions by police authorities with no real direction, at huge financial cost to the banks, bearing in mind that the smaller the bank, the greater the proportionate burden on it? I beg to move.

Lord Filkin: Again one understands these probing amendments. We are not blind to the fact that customer information orders, whilst we think they are a crucial measure in the fight against crime and international crime, impose more burdens than, for example, account monitoring orders would. The amendments would remove the possibility of a customer information order in England, Wales, Scotland or Northern Ireland specifying all financial institutions. We think that that is unacceptable for two reasons: first, we have opted for consistency with the Proceeds of Crime Act, so that customer information orders made under the protocol follow the procedures of Sections 363 and 397 of that Act as far as possible.

Secondly, and more importantly, we need the ability to specify all accounts. We envisage that it is a power that will be used rarely, because in the vast majority of cases the foreign investigator is likely to have other intelligence pointing to the existence of an account, which will narrow down the scope. Once we have received the request, domestic intelligence checks through NCIS will be likely to point to the existence of accounts at certain banks, enabling the order to be focussed at particular institutions.

However, we believe that there may be exceptional circumstances when that may not apply. For example, in a terrorism case where there is no evidence pointing to an account at a particular bank, but nevertheless the scale of concern about the potential terrorist offence is such that it would justify a wider search to all financial institutions.

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"Financial institutions" is defined in the Bill—if I recollect correctly—as those financial institutions that are subject to regulation, which I interpret as meaning those which are subject to the Financial Services Authority. Where that occurs, they would be defined as financial institutions for those purposes. I should emphasise that that is very rare.

I address the understandable concern of fishing expeditions. The Bill gives the Secretary of State discretion as to whether he executes a request for assistance, as we signalled during the discussion on an earlier amendment, and it gives the court a discretion whether to make the order.

One of the matters that the Secretary of State will take into account will be whether the request contains the information specified in Article 1 of the protocol, in particular the conditions in Article 1(4). That includes, for example, the requirement that the requesting authority state why it is considered that the requested information is likely to be of substantial value to the investigation. If that information is not given, refusal may follow. The test is the same as one of the tests under domestic law in PACE. We are confident, therefore, that we will not be allowing fishing expeditions. It will not be a general trawl as to whether one might know of someone who might have done something wrong; it has to relate to a specific investigation. We expect that in most cases there will be evidence why it was thought that there was a UK-relevance to the investigation.

We have not listed these requirements on the face of the Bill but consider that the general discretion conferred on both the Secretary of State and the court as to whether to execute the request and make the order are adequate and powerful. They will prevent fishing expeditions whilst enabling necessary investigations to be undertaken. I hope that I have addressed the questions raised on this probing amendment.

Baroness Carnegy of Lour: I am trying to think of what happens between England, Wales and Scotland in these matters. Supposing there is a request for information from institutions north of the Border as well as south of the Border, when the judge or the sheriff makes a decision, will they consult one another? Might it be that the order was agreed south of the Border, not north of it? Have the Government thought of that matter, or am I asking an irrelevant question? The request could concern banks in both jurisdictions, could it not?

Lord Filkin: The answer to the noble Baroness's first question is no, and to the second it is yes. She is not asking irrelevant questions, and, no, I had not thought of that circumstance. I shall keep talking and wait for inspiration. We shall consider further the question of cross-Border consultation and write to the noble Baroness.

Viscount Bridgeman: In reference to the request made by my noble friend Lady Carnegy, the theme of the different jurisdictions of the two countries runs

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throughout the Bill. We should be grateful for a concise explanation at a later stage—if necessary on the face of the Bill.

I am grateful to the Minister for his full and reassuring reply to the points raised, in particular as regards the safeguards against fishing expeditions. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 96C not moved.]

Lord Filkin moved Amendment No. 97:

    Page 19, line 32, at end insert—

"( ) a senior customs officer,
( ) a customs officer authorised by a senior customs officer to make the application."

On Question, amendment agreed to.

Clause 33, as amended, agreed to.

Clause 34 [Offences]:

Viscount Bridgeman moved Amendment No. 97A:

    Page 19, line 36, at end insert "within the specified period"

The noble Viscount said: This amendment stands also in the name of my noble friend Lady Anelay. It is a probing amendment to ascertain what time frame, if any, will be imposed on such orders and investigations.

Clause 37 states that a financial institution must provide information,

    "in such manner, and at or by such time, as the applicant requires".

How variable is that time frame? What will happen if a bank simply does not respond to a customer information order? What are the penalties for not complying on time? What does the Minister see as a reasonable period in which an institution must comply? Will the same period of time apply to all institutions, or will there be differences for multinationals, which will have more staff to cope with such requests; or will they be treated in the same way as smaller, specialist banks, which may find it harder to comply quickly? Again, I make the point that this provision would bear more forcefully on the smaller banks. I beg to move.

Lord Renton: Although my noble friend has described this as a probing amendment, as a matter of practical application a time limit needs to be imposed. It would be unreasonable, and it would affect a great many people in an unsatisfactory way, if this matter were allowed to spread over a long period. There are several ways of dealing with it, but that suggested by my noble friend is as good as any. I hope that the Government will regard the amendment sympathetically.

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