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16 July 2008 : Column GC103
16 July 2008 : Column GC103
16 July 2008 : Column GC103
Wednesday, 16 July 2008.
The Committee met at quarter to four.
[The Deputy Chairman of Committees (Lord Haskel) in the Chair.]
The Deputy Chairman of Committees (Lord Haskel): Before the Minister moves that the first statutory instrument be considered, I remind noble Lords that in the case of each statutory instrument the Motion will be that the Committee do consider the statutory instrument in question. The Motion to approve the statutory instrument will be moved in the Chamber in the usual way. I add for the benefit of noble Lords that if there is a Division when we get on to the Pensions Bill, the Committee will adjourn for 10 minutes.
Proceeds of Crime Act 2002 (Investigative Powers of Prosecutors in England, Wales and Northern Ireland, Code of Practice) Order 2008
3.46 pm
The Attorney-General (Baroness Scotland of Asthal) rose to move, That the Grand Committee do report to the House that it has considered the Proceeds of Crime Act 2002 (Investigative Powers of Prosecutors in England, Wales and Northern Ireland: Code of Practice) Order 2008.
The noble Baroness said: The order was laid before the House on 18 June, with an Explanatory Memorandum and a draft code of practice. I hope that your Lordships have had the opportunity to study them. I take this opportunity to put on record my appreciation to the noble Lord, Lord Kingsland, and, in his absence, the noble Lord, Lord Thomas of Gresford, for their forbearance on the last occasion. By some inadvertence the Explanatory Memorandum was not available and we were not able to deal with the matter on that occasion. I apologise most wholeheartedly for that mistake.
The order brings into operation a code of practice governing the exercise by prosecutors of their investigative powers in relation to civil recovery and criminal confiscation investigations. The Proceeds of Crime Act, which came into force in 2003, created investigative powers to be used in tracing criminal assets. These are the powers to apply for and execute production orders, search and seizure warrants, customer information orders, account monitoring orders and disclosure orders. These investigative powers have been exercised in England, Wales and Northern Ireland by the Assets Recovery Agency and law enforcement agencies such as the police and Her Majesty’s Revenue and Customs. In exercising the powers, these organisations have operated under a code of practice issued by the Home Secretary under Section 377 of the Proceeds of Crime Act.
The Serious Crime Act 2007 amended the Proceeds of Crime Act by merging the Assets Recovery Agency with the Serious Organised Crime Agency, with effect
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The staff of the Serious Organised Crime Agency will continue to operate under the Home Secretary’s code of practice, which was recently amended to take account of the changes brought in by the Serious Crime Act and to maintain consistency with the codes of practice under the Police and Criminal Evidence Act 1984, which have developed over the years. The Home Secretary’s amended code was the subject of public consultation ending in January, and was brought into effect by an order approved by both Houses on 1 April.
The staff of the prosecuting authorities will be bound by a code of practice issued by me, and it is that prosecutor’s code which is brought into operation by this order. My code is identical in all material respects to the Home Secretary’s amended code, so that different agencies exercising these powers will do so to the same standards and with the same safeguards. My code was put out to public consultation in March but no responses were received, presumably because any issues had already been addressed and resolved in the drafting of the Home Secretary’s amended code.
My code gives detailed guidance to the staff of the prosecuting authorities on the way in which they should apply for and execute the various investigative measures available to them in respect of civil recovery investigations. The code also gives guidance to prosecutors on their role in criminal confiscation investigations, namely in applying for disclosure orders on behalf of the law enforcement agencies.
The introductory part of the code provides an overview of the investigative powers and the provisions applicable to all of them. That includes general best practice for making applications for the various orders and warrants, and executing them. It also includes guidance on the procedures for the retention of documents and information. The code then provides some more detailed information on each of the investigative measures.
In summary, I am satisfied that the draft code sets out clearly the processes and safeguards required for the effective and fair operation of the investigative powers. Due to the nature of the draft order, I have spoken more to the draft code than to the order itself. The only further point on the order is that, in relation to Northern Ireland—I see the noble Lord, Lord Glentoran, in his place—it is made by me in my capacity as Attorney-General for Northern Ireland. I beg to move.
Moved, That the Grand Committee do report to the House that it has considered the Proceeds of Crime Act 2002 (Investigative Powers of Prosecutors in England, Wales and Northern Ireland: Code of Practice) Order 2008. 23rd Report from the Joint Committee on Statutory Instruments.—(Baroness Scotland of Asthal.)
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Lord Kingsland: At the beginning of her speech, the noble and learned Baroness generously apologised for the inadvertent absence of the Explanatory Memorandum on the previous occasion. These things happen on the best run vessels, and I do not believe that any damage has been done to the national interest.
The order flows from the changes made to Part 8 of the Proceeds of Crime Act 2002 by the Serious Crime Act 2007. We made it clear at the time of the passage of the then Bill that in principle we supported the changes, the most important of which has been to abolish the Assets Recovery Agency and transfer its civil recovery functions to the Serious Organised Crime Agency and the four main prosecuting authorities in England and Wales.
As the noble and learned Baroness explained, the order brings into operation a code of practice that provides guidance for prosecutors on their exercise of powers of investigation under the 2002 Act. As I understand it, the earlier code has been revised to take account of the changes introduced by the 2007 Act.
I have just two questions for the noble and learned Baroness. First, as she must know, concerns have been raised in Northern Ireland that SOCA’s priorities will be such that cases of intimidation and local protection rackets will be considered insufficiently substantial to attract its attention. Secondly, I would be most grateful if she could assure the Committee that the costs of recovering assets, as well as the amounts recovered, will be made public on a regular basis. The change that she has introduced should not be at the expense of transparency.
Baroness Falkner of Margravine: I, too, thank the noble and learned Baroness the Attorney-General for her explanation of the order. I apologise for the fact that my noble friend Lord Thomas of Gresford is unable to be here today; he was intrigued by the delay in receiving the code but was grateful to receive it when he did.
I accept that this is largely the same as the code of practice for SOCA, which was passed by both Houses earlier in the year. It is reassuring to know that the various agencies will exercise the powers of prosecution to the same standards and with the same safeguards.
The noble and learned Baroness mentioned that this code was put out to public consultation in March 2008 and that no responses were received. Can she tell us how long the consultation process was and why there were no responses during that period? Apart from that point, we welcome the order.
Baroness Scotland of Asthal: First, I thank the noble Lord, Lord Kingsland, for his kindness and consideration in not berating me for the slip. I am most grateful to him. I also thank the noble Baroness, Lady Falkner of Margravine, for the same generosity of spirit. This Committee is graced by her presence.
Baroness Scotland of Asthal: Without any disrespect to the noble Lord, Lord Thomas, I am sure that none of us thinks that she is a poor substitution; she is a very fine substitute.
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I am aware of the concerns raised about Northern Ireland. There has been no evidence in fact that any change has taken place. ARA in Northern Ireland has performed with considerable distinction and efficacy and it is intended that there should be no significant change in that. Every effort is being made to ensure that the efficacy of the procedure and the approach that was adopted before is continued. I know of nothing to indicate that there has been a diminution, although I am very happy to clarify that point.
On costs and the recovery of assets, I can reassure the noble Lord that there will be no lack of transparency. I, too, expect these figures to be disclosed in the normal way.
I believe that the consultation period was the same length as usual, but because the Home Secretary’s order and code had been so extensively consulted upon, with issues raised and resolved, we were not surprised that there was no response to our consultation. We did not take it amiss because it is identical in terms to the Home Secretary’s order.
It is right that we look at comprehensive safeguards and make sure the powers are exercised fairly and proportionately by, for example, making arrangements for a person interviewed under a disclosure order to have access to legal or financial advice and the support of an appropriate adult. That would deal with the sort of issues that were raised in relation to the Home Secretary’s previous code and were put right or amplified in the amended code.
I hope that Members of the Committee will find that this is now in good order; I invite them to approve the order in the terms set.
On Question, Motion agreed to.
Northern Ireland (Sentences) Act 1998 (Specified Organisations) Order 2008
3.59 pm
Lord Rooker rose to move, That the Grand Committee do report to the House that it has considered the Northern Ireland (Sentences) Act 1998 (Specified Organisations) Order 2008.
The noble Lord said: The Northern Ireland (Sentences) Act 1998 provides that the Secretary of State must specify an organisation that is concerned in terrorism connected with the affairs of Northern Ireland, or in promoting or encouraging it, and that has not established or is not maintaining a complete and unequivocal ceasefire. In applying his judgment to the second limb of that test, the Secretary of State is obliged, in particular, to take into account whether an organisation is committed to the use now and in the future of only democratic and peaceful means to achieve its objectives, has ceased to be involved in any acts of violence or preparation for violence, is directing or promoting acts of violence by other organisations, and is co-operating fully with the decommissioning commission. The Secretary of State in coming to a judgment in the round will take into account briefings from the Security Service in consultation with the chief constable.
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The following organisations are specified at the moment: the Continuity Irish Republican Army, the Loyalist Volunteer Force, the Orange Volunteers, the Real Irish Republican Army, the Red Hand Defenders, the Ulster Volunteer Force, and the Red Hand Commando. The Secretary of State must review this list from time to time. Changes of circumstances can require amendments to the list of specified organisations.
To that end, the Secretary of State keeps the status of all specified organisations and those purporting to be on a ceasefire under continuous review and takes advice from the Security Service and chief constable as to the robustness of all ceasefires. The consequence of this order is that certain prisoners may be eligible for early release under the Northern Ireland (Sentences) Act 1998. However, it has been confirmed that there are currently no prisoners who will benefit from the despecification of the Ulster Volunteer Force and the Red Hand Commando. The order before us today despecifies the Ulster Volunteer Force, generally referred to as the UVF, and the Red Hand Commando. The latter organisation is associated with the UVF and has been used as a “flag of convenience” for UVF activity in the past. The order also specifies Ã"glaigh na hEireann.
I will turn first to the specification of Ã"glaigh na hEireann. This is the first time this organisation has been included in a specification order. Ã"glaigh na hEireann was first identified by the Independent Monitoring Commission in its eighth report, published on 1 February 2006. The commission reported, at paragraph 3.5, a new dissident group, styling itself as Ã"glaigh na hEireann, that had splintered from the Continuity IRA. This is the organisation that we are specifying.
The actions of this organisation are an attempt to pretend that the progress of recent years never occurred. The people of Northern Ireland have no appetite for this form of violence and will not tolerate this attempt to undermine the progress communities have made politically, economically and in terms of the start of the healing of community divisions. This organisation clearly meets the terms for specification. The Independent Monitoring Commission has repeatedly said that the organisation,
This organisation continues to be a risk to members of the security forces through their active targeting. The organisation is involved in serious criminal activity and organised crime. This will not be tolerated, and the Northern Ireland Organised Crime Task Force should be commended for its work in tackling the organised crime perpetrated by this and other organisations.
The most serious of the crimes attributable to Ã"glaigh na hEireann is the murder of Andrew Burns, a 27 year-old Strabane man who was abducted and taken across the border to County Donegal where he was shot twice. The IMC classed this as a paramilitary murder and attributed it to Ã"glaigh na hEireann. Ã"glaigh na hEireann, like other dissident republican groups who set themselves on this dangerous path, represents no one but itself. It has no cause, no mandate and nowhere to go but out of business. I pay tribute to the work of the PSNI and
16 July 2008 : Column GC108
The order also despecifies the UVF and Red Hand Commando. Those two organisations were specified in 2005, following their violent feud with the Loyalist Volunteer Force, including serious and dangerous rioting at the Whiterock Parade. However, we must acknowledge the significant progress which has been made since those events. A reduction in activity and a change in direction by those organisations have been documented by the Independent Monitoring Commission in its reports. The most significant step is the 3 May 2007 statement, which announced an end to their terror campaign. The statement was that the:
and that all ordnances would be “put beyond reach”. That announcement indicated a major turning point for those organisations. At that point, the Secretary of State committed to review the status of the organisation.
The IMC said in its most recent and 18th report, published on 1 May 2008, that the UVF was committed to the path set out in its statement of 3 May 2007. It is important that we acknowledge the progress made by the UVF and the Red Hand Commando, but the story should not end there. The issue of the organisations’ arsenal must be addressed even if it is beyond reach. The leadership must step up its engagement with the Independent International Commission on Decommissioning. That process needs to result in the decommissioning of paramilitary weapons.
The Secretary of State said at the Mitchell conference that structures such as the Independent International Commission on Decommissioning and the IMC were,
The Independent International Commission on Decommissioning represents a legal route to decommissioning. The protections that come with this route will not be around for ever if the commission is not there. While we recognise that such things do not happen overnight, our patience and that of the community is now nearing an end. None the less, the order recognises the progress made to date. The evidence from the IMC report is clear. We have weighed that carefully and concluded that the tests for despecification are met in the case of the UVF and the Red Hand Commando. I beg to move.
Moved, That the Grand Committee do report to the House that it has considered the Northern Ireland (Sentences) Act 1998 (Specified Organisations) Order 2008. 21st Report from the Joint Committee on Statutory Instruments.—(Lord Rooker.)
Lord Glentoran: I thank the Minister for his explanation of the order. We have no difficulty in supporting the specification of Ã"glaigh na hEireann. The Minister recently taught me how to say that and I hope I have got it right. However, we disagree with the despecification of the UDA. It seems as though it is one law for some and another for others. As my honourable friend in the other place says not too infrequently, the UDA has not yet decommissioned even a water pistol. In this House and in the other place, we have been pressing for decommissioning from the loyalists and we have
16 July 2008 : Column GC109
“Overall, in the light of what we have said above, we think that the British Government should revisit the question of the despecification of the UVF”.
To me that says, “We do not think you are right to make this decision to despecify the UVF”.
That is where we stand. Are HMG going soft on decommissioning? I would find it surprising if they were, and I sincerely hope that they are not, but it looks a bit like it. This order certainly points in that direction. What is the Government’s position on decommissioning?
I would be grateful if the Minister could give me clear reasons for the UVF being despecified and allowed to hang on to its arsenal, particularly as some of its members are trying to acquire more ordnance, as I think it is known these days. It is interesting that my noble friend Lord Trimble was not so long ago of the same view personally—not as a party member—that this is not the right time to despecify the UVF.
Certainly, the UVF has made a major statement; certainly, it has moved to some extent in the direction of the real world in which we live; but it has not yet gone far enough. It is still a criminal and potentially terrorist organisation; it still has an organisation; it still has an arsenal of weapons. Why on earth have Her Majesty’s Government decided that they are good boys and girls and can be despecified without any decommissioning?
I do not support the order, but as it is a statutory instrument we in this House, unlike at the other end, cannot vote against it. My party voted against it in the other place.
Lord Smith of Clifton: I, too, thank the Minister for introducing the order. I share much of the scepticism of the noble Lord, Lord Glentoran. I understand, however, that it is necessary where possible to offer some form of encouragement to those paramilitary organisations that appear to be moving in the right direction. We could dispute as a matter of timing whether the UVF and the Red Hand Commando should at this point be no longer specified—that is a matter of judgment. There remains, too, the question of the decommissioning by the UVF. It has substantial arms, and it would be much more heartening if it was to agree to give them up.
It is important to emphasise that while we are made more aware by the press of some of the atrocities committed by republican paramilitaries, there remains on the loyalist side a considerable threat to the peace of Northern Ireland. We can only hope that continuing prosperity—fingers crossed—and the rebuilding of civic society in Northern Ireland will mean that such organisations no longer have any support from any sections of the community. However, while emphasising that it is not just on the republican side that these threats exist and that significant loyalist factions are also at work, we will with some reluctance—because of the points raised by the noble Lord, Lord Glentoran—support the order.
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