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I believe that I have dealt with the point raised by the noble Baroness, Lady Carnegy, about waiting for Third Reading. Obviously, we await the outcome of the Delegated Powers and Regulatory Reform Committee meeting under the chairmanship of the noble Lord, Lord Goodhart, tomorrow.
I shall now give the government view on some of the amendments. I thank the noble Baroness, Lady Neville-Jones, for raising the point about proportionality. Proportionality is a very important requirement for the operation of any administrative power of this type, and I can assure the House that it will be a key consideration in the exercise of these powers. In any use of these powers, Ministers will seek to balance the need to take effective action against the potential impact on UK business. That will require careful consideration of the money-laundering, terrorist-financing or proliferation risks, and of the burden of any requirements imposed on business. I am therefore happy to recognise the need for proportionality in the Treasury’s exercise of the powers. If the noble Baroness will be content, the Government will therefore table an amendment at Third Reading to include a provision that gives proper effect to that.
I understand the reasoning behind Amendment No. 61AB, but it would remove an important provision that it is necessary to retain. The Treasury needs the ability to act quickly, if necessary, to give effect to orders containing general restrictions, but these should be subject to ultimate parliamentary approval. Removing the provision could unnecessarily inhibit our ability to act. However, let me reassure the House again that we will be concerned that use of the powers does not impact unduly on business. To that end, I have given a commitment to establish a formal requirement for proportionality.
Nevertheless, there may well be circumstances where a direction will require businesses transacting with jurisdictions of high risk to limit or cease business. In some cases, that will require the cessation of current
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Where an order is not approved by Parliament, I can assure the House that we would consider the circumstances carefully to see whether compensation is justified. Ultimately, the courts could in appropriate cases consider whether a firm was due any compensation as a result of actions taken to comply with a direction that subsequently ceased to have effect or as a result of an order failing to secure approval.I therefore cannot agree to the amendment, but I hope that the noble Baroness, Lady Neville-Jones, will be satisfied with that response.
I appreciate the points made in the tabling of Amendment No. 61AC, but it is important to retain that provision, which provides an appropriate sanction for people who attempt to obtain a licence by duplicity. We have made provision for a licensing regime to enable the Treasury to reduce any avoidable impacts on third parties from a direction requiring the limitation or cessation of business.
I understand the significant issues mentioned by noble Lords in respect of Amendment No. 61AD. The provision has a dual purpose: to give UK courts jurisdiction over offences committed outside the UK; and to provide for UK-wide jurisdiction for offences regardless of where the offence took place. I say to the noble Lord, Lord Thomas, that such provisions in respect of offences committed outside the UK exist in other legislation—for instance, in Section 17 of the Terrorism Act 2006. We consider that such provision is necessary, given that directions may apply to action outside the UK and that offences may be committed by action outside the UK.
The provision replicates Clause 29, which deals with specific terrorist offences. Given the nature of the offences that we are discussing in relation to these powers, namely the breaching of directions, I accept that they are of a different order to such terrorist offences, and that there is therefore less requirement for such provision in relation to offences committed in the UK. Therefore, although I cannot agree to the amendment, the Government are prepared to table an amendment at Third Reading so that the provision applies only to offences committed outside the UK.
Amendments Nos. 61AE to 61AK all concern the same principle of the appropriate time limits for summary proceedings across the three jurisdictions in which prosecutions might be commenced. I believe that it is necessary to provide for extensions of the standard time limits due to the nature of the offences concerned. In these circumstances, it is quite possible that an offence may not come to light for some time, and that the subsequent investigation into it may be a complicated process involving the analysis of large amounts of documentation and computer records concerning complex transactions.
Furthermore, it is not unusual to extend the time limits by this amount. I note it has been done, for instance, in the Terrorism (United Nations Measures)
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I note the points made by the noble Lord, Lord Thomas, on Amendment No. 61AL, but this is not an unusual provision. It is simply designed to prevent unjustified delay to any proceedings resulting from argument over precise dates. Similar provisions exist in other legislation, including the legislation I just mentioned.
I shall deal with Amendments Nos. 61AM, 61AN and 61AP together, as they concern the same issue: that if an offence committed by a company is shown to be attributable to neglect of an officer of the company, the officer is guilty of an offence as well. Subsequent sub-paragraphs in the schedule replicate that provision in respect of partnerships and unincorporated associations.
I appreciate the concern of the noble Lord, Lord Thomas, that that makes individuals potentially liable for non-compliance with a direction. However, I think that that is justified. It is a standard provision in relation to criminal offences that may be committed by a company, and it replicates the existing situation under the money-laundering regulations. Similar provisions exist in a number of other pieces of legislation, including the Energy Act 2004, the Animal Welfare Act 2006 and Section 78 of the Anti-social Behaviour Act 2003.
An important point was raised in connection with Amendment No. 61B. We are keen to provide Parliament with appropriate information on the Treasury's use of the powers. Paragraph 38 of the schedule makes provision for the Treasury to submit an annual report to Parliament that sets out how it exercises those powers. The noble Baroness, Lady Miller, said that that was a probing amendment. She kindly said that it was in the nature of these things that whatever one listed, there would always be something that one forgot—rather like packing for a holiday—so it is probably not right to be prescriptive about the content. However, the general sense of the points that she made is well taken.
The Government feel that their approach is the right one from a legislative point of view. It would be unusual for specific details to be included in primary legislation. Given that much of this information would already be in the public domain as a result of the Treasury providing it to Parliament for the making of an order and/or subsequently publicising directions, it would be helpful to maintain some flexibility in the preparation of each report. I assure noble Lords that the Government intend the Treasury’s annual report to be helpful and informative.
On Amendment No. 61A, I should point out that guidance by industry bodies and supervisors has been of great assistance in enabling firms to implement the money-laundering regulations consistently and on a risk-sensitive basis. This guidance was developed by the supervisors and industry-led bodies, and was ultimately approved by the Treasury. The Treasury expects in this instance as well to help supervisors and others to
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I can best say to the noble and learned Lord, Lord Mayhew, that I undertake to consider the point that he made about drafting. We will bear in mind his careful and precise observations.
In conclusion, I thank all noble Lords for their constructive engagement. I hope that I have been able to respond fully to their questions about these important issues. If I have failed to do so, I apologise. I will be happy to answer any questions that I may have missed. Alternatively, I will write to noble Lords and to those who have participated in the debate. I very much hope that the House will support the amendment—again, I apologise for its late appearance—and that it will also support the other government amendments in this group.
Lord Goodhart: My Lords, will the Minister clarify one point? When dealing with what the noble Baroness, Lady Carnegy, said, he used words that indicated that he might be proposing to accept what she suggested and to delay adopting these amendments until a later date. I should make it clear on behalf of the Delegated Powers and Regulatory Reform Committee that I did not and would not ask for that, because we can deal adequately with any necessary amendments by tabling them at Third Reading as amendments to the new schedule.
Lord Myners: My Lords, I thank the noble Lord for giving me the opportunity to clarify anything that I misspoke, as Mrs Clinton would have said. He correctly summarised my intention, for which I thank him.
On Question, amendment agreed to.
Clause 62 [Application to set aside asset freezing decision]:
Lord Myners moved Amendments Nos. 47B and 47C:
47B: Clause 62, page 46, line 11, at end insert “, or
( ) Schedule (Terrorist financing and money laundering) to this Act (terrorist financing, money laundering and certain other activities: financial restrictions).”
47C: Clause 62, page 46, line 23, at end insert “or
( ) to give a direction or make an order under Schedule (Terrorist financing and money laundering) to this Act,”
On Question, amendments agreed to.
Clause 64 [Asset freezing proceedings]:
Lord Myners moved Amendment No. 47D:
On Question, amendment agreed to.
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Clause 65 [General provisions about rules of court]:
Lord Myners moved Amendments Nos. 47E and 47F:
On Question, amendments agreed to.
Clause 66 [Rules of court about disclosure]:
Lord Myners moved Amendments Nos. 47G and 47H:
On Question, amendments agreed to.
Clause 67 [Appointment of special advocate]:
Lord Myners moved Amendments Nos. 47J to 47N:
On Question, amendments agreed to.
Clause 68 [Intercept evidence]:
Lord Myners moved Amendment No. 47P:
On Question, amendment agreed to.
Clause 70 [Allocation of proceedings to Queen’s Bench Division]:
Lord Myners moved Amendment No. 47Q:
On Question, amendment agreed to.
Lord Myners moved Amendment No. 47R:
On Question, amendment agreed to.
Baroness Miller of Chilthorne Domer moved Amendment No. 48:
48: After Clause 73, insert the following new Clause—
(1) In section 18 of the Regulation of Investigatory Powers Act 2000 (c. 23) (exceptions to section 17), after subsection (7)(c) insert—
“(d) a disclosure to a coroner or to a person appointed as counsel to an inquest or to members of a jury or to any properly interested person where—
(i) the coroner holding the inquest is a judge of the High Court; and
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(ii) the coroner has ordered the disclosure to be made to the coroner alone or (as the case may be) to the coroner and the person appointed as counsel to the inquest or to members of a jury or to any properly interested person.”
(2) After subsection (8A) insert—
“(8B) A coroner shall not order a disclosure under subsection (7)(d) except where the coroner is satisfied that the exceptional circumstances of the case make the dislcosure essential to enable the matters that are required to be ascertained by the inquest to be ascertained.”
(3) After subsection (11) insert—
“(11A) References in this section to a coroner apply only where the coroner is a judge of the High Court.”
(4) This section has effect in relation to inquests that have begun, but have not been concluded, before the day on which it comes into force as well as to inquests beginning on or after that day.”
The noble Baroness said: My Lords, first, I should make it absolutely clear that I am not reopening our discussion in Committee on whether inquests should be held in secret or on any of the other proposals which the Government agreed to withdraw and bring back in a coroners Bill.
The amendment deals simply with an issue that was overlooked when the Regulation of Investigatory Powers Act went through in 2000. Although it is a small technical point, it has had huge ramifications first for one family, now for a second family, and for society as a whole. In what I imagine was a drafting error, a small lacuna was left in Section 18, which did not state that a High Court judge, who in all other circumstances listed in that section can see the material in question and come to a conclusion about it, can do so when sitting as a coroner. I will explain why that is such a difficulty.
All my amendment seeks to do is to include the ability of a judge to sit as a coroner at an inquest and to hear this evidence, as he does in all other instances when he sits as a judge. I shall briefly recap why this is necessary. If the Minister casts his mind back, he too will remember that, at the outset of the Bill, his colleagues in another place and subsequently here impressed on us all how urgent it was that the secret inquest could be dealt with, not as a general issue but to allow a particular inquest to proceed—the inquest into the death of Azelle Rodney, who was shot by the police on 5 May 2005. It was urgent, as the Government said themselves when they wrote to the Rodneys’ solicitors, Hickman & Rose, on 30 November 2007, promising that they would change the law so that the inquest into Azelle Rodney’s death could resume. When promising this, they stated that they were acutely aware of the urgent need to find a way forward—this was a year ago—because of the immense delay that had already occurred. That need for urgency arose not least because the state has a legal duty to ensure a prompt investigation into a death in such circumstances. This involves holding an inquest as soon as is practicable.
As I said in Committee, since that inquest, which has been delayed and delayed, there has been a second case—that of Terry Nicholas, who was shot in 2007. The inquest into that death is not being held for the same reason: that there was intercept evidence, which cannot be disclosed to a coroner or a jury but which is crucial to the case. My amendment would mean that
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I turn now to some of the issues covered by the Minister in his reply in Committee. He made several assertions which I do not think are factually or legally correct. He claimed that the amendment would allow the wide disclosure of very sensitive material. I do not think that that is true, because it would allow the disclosure only of RIPA-related material and that would be only when a High Court judge was sitting as a coroner. That judge has to be satisfied that the material is essential in finding out how someone died. It would not necessarily mean that the material would be subject to public disclosure if it was deemed to be too sensitive. A whole series of options are available and are used in inquests, which could be decided by the coroner; for example, imposing reporting restrictions on proceedings, deciding that in the interests of national security certain sections of the proceedings take place in camera or properly interested persons agreeing to confidentiality undertakings.
The Minister went on to say that it is unclear how the new clause would work in practice in the absence of any legislative mechanism to ensure that a High Court judge is appointed to hold such an inquest. In fact, under Section 14 of the Coroners Act 1988, coroners can apply for the jurisdiction of an inquest to go to a circuit or a High Court judge. Quite recently, High Court judges have sat as coroners at inquests in two high profile death-in-custody cases, and at the ongoing inquest into the Jean Charles de Menezes case.
I agree with the noble Lord, Lord West, that it is absolutely necessary to balance the interests of the family and the public when discussing material that cannot be disclosed. We think that that balance is necessary and must be achieved, which is why I have brought forward this amendment. It is in the family’s interest, but much more crucially in the interest of wider society, that where the state has had a part in the death of someone—in this case, the police shot them—it is essential that such an inquest is heard promptly.
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