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Lord Renton: The Government already use the words "serious criminal conduct" in Clause 37(1) and Clause 38(1) in this part of the Bill. I do not think there is any definition in the Bill of the difference between criminal conduct and serious criminal conduct.
I confess that in my ancient experience of criminal work, now going back many years, I was never a specialist, but I did a lot. I did my first criminal case back in 1934 and my last in 1976. I do not remember any distinction being made then between criminal conduct and serious criminal conduct. It may be that owing to my ignorance, as I have not appeared in a criminal court for many years, I am misguided in thinking that there is no statutory definition of the difference between the two. Within the same part of the same Bill, we must not have some provisions referring to criminal conduct and other provisions referring to serious criminal conduct without there being a definition.
Lord Clinton-Davis: The noble Lord did not mention Clause 32, which also refers to serious criminal conduct. I confess that I am baffled by the word "serious". The consequences of any criminal
conduct can be serious for the person concerned. For that reason, I ask my noble friend to think again about the terms that have been used.
Baroness Carnegy of Lour: The noble Lord, Lord Goodhart, made the important point that requests that come in two directions should not be in relation to very different levels of offence. I think he suggested that it might be a serious offence coming one way and not so serious the other. Will the Minister reassure us on that point?
Lord Renton: I confess to an oversight. I am most grateful to the noble Lord, Lord Goodhart, for pointing it out to me. Clause 46 is headed "Interpretation of Chapter 4". Serious criminal conduct is defined in subsection (3) as conduct that constitutes,
- "an offence to which paragraph 3 of Article 1 . . . of the 2001 Protocol applies",
- "an offence specified in an order made by the Secretary of State or, in relation to Scotland, the Scottish Ministers for the purpose of giving effect to any decision of the Council of the European Union under paragraph 6 of that Article".
I am grateful to the noble Lord for pointing that out and I apologise for not having noticed it sooner. All the same, we must be very careful, bearing in mind that the Bill has used the expression "criminal conduct" frequently so far throughout Parts 1 and 2. The definition of serious criminal conduct is much narrower. If "serious" is to be inserted in a number of new places, we must bear in mind the limitation that it imposes.
Lord Filkin: The noble Lord, Lord Renton, is right. It is always a sign of a Committee working well when its members answer each other's questions and reduce my burdens. I shall speak to the essence of this important issue of why we use the word "serious" in some cases and not in others.
The amendments would limit the assistance that the UK could provide in response to requests for account monitoring to cases of serious criminal conduct rather than criminal conduct generally. Requests for customer information orders under the protocol are limited to investigations into serious criminal conduct, as set out in Clauses 32, 33, 37 and 38. This is in accordance with the terms of the protocol, which only requires member states to assist in limited circumstances on customer information orders, in recognition of the potentially higher volume of work flowing from such requests.
Account monitoring orders are focused on one specific named account and are therefore much less resource-intensive for a financial institution to respond to. Furthermore, they are based on concrete evidence of the existence of an account. They are also arguably less intrusive, as they seek information about an account that has already been identified, whereas customer information orders are designed to identify any account that an individual might hold.
That is why the differentiation was made in the negotiations on the protocol. We recognised that customer information orders are necessary and will play an important part, but, as they are likely to impose a greater burden on financial institutions than will an account monitoring order, it seemed reasonable to the negotiators—of which we were one—to limit them to the serious cases, as defined in the Bill and the protocol.
The Committee may also be aware that it is already possible under existing mutual legal assistance arrangements for constables to apply for historic account information to be produced to a court in relation to any criminal investigation without any dual criminality. That is done under Section 4 of the 1990 Act—Clause 15 of the Bill—whereby a bank employee may be summoned to produce this information before a court. This new provision is different only in that it relates to future transactions rather than to historic ones. It is likely that a single request would ask for historic information and for the account to be monitored. It would be cumbersome and impractical to be able to accede to the first half of the request and not to the second solely on the ground that the crime was not serious. The purpose is to help to identify and trace criminality. That is why member states thought this was desirable. We therefore need to do all we can to help our partners tackle international crime. Perhaps more selfishly, it is crucial that they co-operate with us in our pursuit of it.
The wider availability of account monitoring orders reflects the conditions for providing this type of assistance, set out in Article 3 of the protocol to the mutual legal assistance convention. This does not limit account monitoring information to cases relating only to serious criminal conduct.
Finally, I remind the Committee that this is a mutual legal assistance measure, not mutual recognition. The decision to grant a request for an account monitoring order is subject to judicial discretion. Clause 36(1) provides that a judge may make an order. The judge must be satisfied that there is a criminal investigation and that the order is sought for the purposes of that.
If I understood the noble Lord, Lord Goodhart, correctly, I cannot easily think why we might want a higher test for outgoing requests than that in the protocol. Such a self-denying ordinance would mean denying ourselves the potential to use the protocol to identify potential criminality. That would be against our interests.
The noble Baroness, Lady Carnegy, is right that this applies either way. It is a reciprocal arrangement. I hope the Committee agrees that I have addressed most of the points. I hope I have done so to the Committee's satisfaction.
Lord Goodhart: I am grateful to the noble Lord for that reply. I shall consider what he has said and decide whether the matter needs further consideration. It is at least possible that we shall wish to pursue it at the next stage of the Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 98A not moved.]
Lord Filkin moved Amendment No. 99:
- Page 20, line 15, at end insert—
On Question, amendment agreed to.
The Deputy Chairman of Committees: Before I call Amendment No. 99A, I inform that Committee that if it is agreed to I cannot call Amendment No. 100.
Viscount Bridgeman moved Amendment No. 99A:
The noble Viscount said: The amendment would leave out the subsection that allows an account monitoring order to have effect in spite of any restrictions placed on the disclosure of such information, however imposed. That seems to be a very wide power. Our legal system has safeguards that do not allow disclosure in certain circumstances, such as if the information would tend to incriminate the person concerned or the documents are protected on the ground of public policy. While I am not advocating that these should be implemented here, would not the clause have implications with regard to the Human Rights Act? Should there not be some safeguards against disclosure? I look forward to clarification from the noble Lord on that. I beg to move.
Lord Filkin: Clause 35(6) states:
The purpose of the provision is to require a financial institution to provide the information specified in the order. The requirements for information made under the powers of investigation take precedence in spite of any restriction on the disclosure of information. Banks are therefore able—indeed, required—to breach customer confidentiality and provide the requested information to the court in response to a lawfully made order.
The provision is necessary because otherwise financial institutions could use customer confidentiality as a reason not to accede to a customer information or account monitoring order, which would make them very weak investigatory tools and therefore largely frustrate the purpose of the protocol and the agreement.
As I have said in previous discussions, the ECHR is fully in operation. Banks or financial institutions have to respond to any lawfully made order. That comes back to the point that we touched on previously. In
For those reasons, the limits on disclosure cannot be made a judgment by the financial institution, but they are part of the consideration that the court has to exercise when deciding whether it would be lawful to make an order under the Act.
"(b) direct a senior customs officer to apply, or arrange for a customs officer to apply, for such an order."
Page 20, line 24, leave out subsection (6).
4.45 p.m.
"An account monitoring order has effect in spite of any restriction on the disclosure of information (however imposed)".
That provision is replicated in Clause 40 for account monitoring orders in Scotland, and in Clauses 32 and 37 for customer information orders. The provision directly replicates Sections 368, 374, 402 and 407 of the Proceeds of Crime Act 2002, which makes identical provision in relation to customer information orders and account monitoring orders made under it.
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