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In saying that, I make no allegations of bad faith on the part of the Government, but Parliament-and we must all include ourselves-would be remiss if it did not stop this process at a much earlier stage. I do not even blame the individual organisations that have decided that, since the powers exist and you can get them by applying for them, they want their bit of the action. The blame rests with us, particularly those of us in a different part of this building who could have stopped the statutory instrument in its tracks, but which we cannot do. The Merits of Statutory Instruments Committee, as we have already heard, did not raise it in the first instance, but did do so at a later stage. I have no doubt that when powers are taken, they will be used, so the legislation must be drawn to ensure that that is not possible. As my noble friend Lord Onslow indicated, we have not been good at this. Anti-terrorism legislation has been used to stop people reading out the names of the dead at the Cenotaph and to freeze the assets of Iceland, thus alienating a friendly state and fellow member of NATO.

The House considered a code of practice following the Serious Crime Act 2007 which merged the Assets Recovery Agency with the Serious Organised Crime Agency, the body which authorises the appointment of these individuals. But it is my belief that the kind of powers that we have heard listed should be exercised by the smallest number of law enforcement agents possible and not handed out to anybody who thinks it would be convenient to have them. If other bodies want these powers, should they not call on the normal law enforcement agencies to exercise them? If they cannot do it, serious questions need to be asked about their organisation and funding. The extension over the years has been formidable, so that the number of bodies included in the order even managed to increase between May and October.

I want to ask the Minister this: under what circumstances and what kind of case is envisaged that would lead local authorities, the Post Office and Transport for London to want powers that were introduced to curtail,

You need quite a lot of car parking tickets to come under that description. If my noble friend chooses to divide the House, I will support him, although it is in the nature of non-fatal amendments that it can only be a gesture. However, it may be a gesture worth making in this instance to demonstrate, at least at this stage, that we have noticed what has been going on, and to give notice to Governments of any persuasion that Parliament has noticed and that the future extension by statutory instrument of such extraordinary and considerable powers to organisations for whom they were not envisaged by anyone at the time that the initial power was provided in the Bill, will not be tolerated and should not occur again.

Lord Campbell of Alloway: My Lords, I want to make a very short speech to say that this is really a technical problem. I speak as a member of the Joint Committee on Statutory Instruments, which meets every Wednesday to consider abuse of process and

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certain other reasons why we should report back to the department. I speak not for the committee but only from my personal experience. I would ask respectfully that we should not divide the House today. This issue should be returned for further consideration as to whether, in essence, it is an abuse of process. Frankly, I think that it is, but what I think is wholly irrelevant. This has to be considered properly and in due course.

There is little more to be said, other than that this should not be dealt with as if it is a singular, one-off occasion. Every Wednesday, we get at least one and sometimes four statutory amendments that are objected to for abuse of process, or for some other reason. The problem is that the departments have no written guide on how they should deal with them. Our advisers are highly intelligent and greatly informed-they were all from the Chancery Division in the old days-but frankly, these matters are difficult for us to understand. We are therefore in the position of having them to help us, but they should be helping the departments with written instructions on how they should deal with these matters. I am sorry to take your Lordships' time.

3.30 pm

Baroness Butler-Sloss: My Lords, I have done the addition that the noble Baroness, Lady Hamwee, had not had time to do, and in addition to the police there are 22 other organisations. They include immigration, but also the Rural Payments Agency and so on. I am a member of the Merits of Statutory Instruments Committee, and I regret that we did not pick this up on the last occasion that a statutory instrument of a similar kind, but with fewer organisations, came through our hands early on this year. Nor indeed, I regret, did we pick it up on this occasion until, like others, we read the Times-and then we had another look at it.

One point which concerns me is that the government department did not go in for the standard consultation, which is the practice. One thing we look at in the Merits Committee is who is consulted and what they say about it. The reason that it did not consult was that there had been no earlier objections, and although there has been a significant increase in the number of organisations with these very wide powers, the government department did not think it necessary to consult this time because there had not been an objection earlier. From the letter from the Permanent Secretary, I hope that it will in future at least go in for the consultation process.

If these additional organisations were unable to have these extensive powers, it would be the duty of the police. Perhaps I might read paragraph 10.2 of the Explanatory Memorandum, with the heading "Impact":

"The impact on the public sector is neutral. Most of the agencies listed already have accredited financial investigators. The bodies added will have previously had to rely upon the police to perform their investigations and so the actual manpower time will not increase. Investigation bodies will also receive a share of money recovered as additional funding to incentivise"-

a terrible verb-

I read that as an encouragement to go out and use these powers. I share the view of the noble Earl, Lord Onslow, and have real concerns about the considerable

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extension of these powers. It is valuable that he has brought it to the attention of the House; it certainly needs, at least, to be looked at.

The Countess of Mar: My Lords, I am very grateful, as the House should be, to the noble Earl, Lord Onslow, for bringing this matter to our attention. To be very brief, over and over and over again I have heard speeches from Back-Benchers warning about Henry VIII clauses, and here we have the outcome. It is called mission creep.

Baroness Buscombe: My Lords, I feel compelled to contribute to this short debate. I support the Motion wholeheartedly, given that I was the shadow Minister steering the Bill through Parliament back in 2002. I remember that we debated at length the whole issue-the noble Lord, Lord Bowness, has referred to this today-of just how far these laws could be extended, and we were assured time and again that we were focusing on major crime and major criminals. It is deeply depressing that today we are discussing what amounts to our part in, frankly, a weak Parliament. The lack of proper scrutiny of the orders following the 2002 Act is lamentable, and we must all share the blame for that.

There have been no sufficient checks. That seems so strange; I remember in 1998, when I first came into this House, the Government introducing this word, "proportionate". Everything had to be proportionate, but these powers are not. Everything also had to be "evidence-based", but where is the evidence? And everything was based on "consultation". We have just heard from noble Lords that there has not been proper consultation. I say again: there has been a lack of proper scrutiny, which has become so habitual and such a depressing issue when it comes to being a Member of your Lordships' House.

The current policy under the memorandum is,

Can we expect something a few months down the line to take this just one step further? These powers should be used only in extremis, and yet they will be applied with regard to common offences. That has to be a dangerous development. In a sense, this is all about more and more erosion of our normal freedoms. It is creating a real change in the culture of this country, which is deeply depressing.

We have had a number of examples today from noble Lords; I shall add one more. I keep hearing about photographers who are not allowed, or who feel unable, to stop in the street to take pictures because somehow they could be committing a crime. We are all beginning to feel that we are in a guilty state, which is appalling.

What will the checks be on the potential abuse of powers? Yes, there will be information on databases that will go astray-what will happen if it falls into the wrong hands? The Minister looks bemused by that, but it keeps happening; he has to accept that.

What about overzealous officials? The proceeds of crime will be shared by the CPS, police officers and courts, so of course there is an incentive here-it is

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sort of commission-based. On one level that is about the need for more efficiencies, as we were hearing about earlier, but we must take great care.

I ask the Minister and the Government: please be careful what you wish for. Freedom is such an easy thing to lose, and you rarely get those freedoms back without a revolution.

Lord Thomas of Gresford: My Lords, I, too, contributed to the Proceeds of Crime Bill when it went through this House. I have also had some practical experience of the Act in operation. As previous speakers have said, it was designed to deal with large-scale crime and terrorism. The architecture of the Act is that an investigator seizes an individual's assets, and it is then for that individual to prove that those assets are not the proceeds of crime. Was it seriously to be the case that the investigators employed by these various agencies-local authorities and so on-should have the power to seize assets and throw the burden of proving that they were legitimately obtained upon the person concerned? That is what the Act was all about. It had nothing to do with the trivialities that the order seems to have brought forth.

Lord Howe of Aberavon: My Lords, it is now some 40 years since I was entitled to put the word "learned" before my name, so it is with some hesitation that I rise to my feet on this important issue raised by my noble friend Lord Onslow. The scale of the extension of powers, the random lack of definition of the extension of powers and the bland way in which they have been commended and accepted thus far startled me as soon as I became aware of them. The list of people to whom they are being extended runs to some 18 pages.

My reaction comes with one qualification: I have to declare an interest as a vice-president of the Trading Standards Institute and as president of the Consumers' Association. The latter appears not to have been consulted about this and would expect to have been. For the Trading Standards Institute, the power to recover money as a surety for handling misappropriated goods has been useful. One should not therefore reject the concept altogether, although I understand why it raises serious anxiety among many of those who have spoken thus far.

There should be a fresh rethink about the order and its massive extension of powers. It does damage to a much more modest and cautiously exercised approach. What on earth might the late Graham Page have said in the face of this legislation? In my early days in the other place, his vigilance was sustained and effective. This House today has demonstrated comparable vigilance. It is a matter of great concern that these proposals have extended as far as they have without much more careful consideration. There may be some merit in some aspects of the order if properly exercised with due restraint, but for it to go through unchallenged would be shameful.

Lord Rooker: My Lords, I had not intended to speak in this debate; in fact, I have been very reluctant during the past year to comment on departments where I have quite recently served. However, the date on which I left the Home Office, 29 May 2002-it is

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the date when ODPM was formed, so I remember it well-is long enough ago. I am not familiar with the order, but I am astonished to learn that it is within the gift of departments to decide whether they consult. My experience from the four departments in which I have served since I have been in your Lordships' House is that there is strict guidance from the Cabinet Office about the rules that departments have to follow when consulting on changes. You have to get permission if you want to cut what would normally be the 13-week consultation period. If circumstances arise whereby you want to do it in six or eight weeks, you virtually have to get an override. So I am a bit surprised that it is possible for a department to say, "Well, no one's bothered in the past. Therefore we can carry on and we don't have to consult". I really am surprised by that.

If I had come to this House for the Second Reading debate on 25 March 2002 and given a flavour of what would subsequently arise, I would have been given pretty short shrift because of the range of these powers. It is quite clear that there has been a massive extension.

It is just not on for government departments to be able to decide whether to consult on these issues. Rules on consultation are set down for the whole Government. To that extent, this looks like a failure in the conduct of public administration by the relevant department.

I fully accept that the means of fighting crime have to change. We will never be ahead of the criminals but, as the techniques change, we have to be as little behind them as possible. That is why the proceeds of crime legislation was passed in the first place.

My final point reiterates what the noble Baroness said about scrutiny. A couple of weeks ago, after the gracious Speech, I made that very point-that the reason why this place exists is the quality of the scrutiny it provides. I also mentioned half a dozen issues which I think we ought to examine in order to tighten up what we do. Because of the force of circumstances and time, the other place cannot provide that scrutiny. It looks at the great policy issues of the day but not at the detail; that is our responsibility. That is something that we should pick up and take forward.

3.45 pm

Lord Neill of Bladen: My Lords, I have heard enough this afternoon to feel convinced that a further careful look at this by the Government is called for. I liked the notion of the noble Lord, Lord Campbell of Alloway, who suggested that we might not vote on the issue today and that the Government could take it away and look at it in some detail. Picking up on a point that was obviously troubling the noble Lord, Lord Rooker, the government departments have been following consultation rules which are apparently binding on them. That is something that ought to be looked at. I have a feeling that if we take a vote today, there may be a scene with which we are somewhat familiar. Various noble Lords will emerge from wherever they have retired to, not having had the benefit of hearing the debate, and vote in a way that might be predicted in advance. That would not be helpful. I think it is something that ought to be looked at here.



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I should say that I knew only one thing about this. I happened to be sitting innocently in the Library the other day, working on a totally different project, when the noble Earl, Lord Onslow, came up to me and asked for some help in looking up some of these statutory instruments. I tried to help in the way that any lawyer would. I did not then form a view but I have formed one this afternoon. There is something here that really does need looking at.

Lord Skelmersdale: My Lords, I congratulate my noble friend Lord Onslow on tabling this Motion. As he rightly said in his introduction, this order is not an innocuous piece of secondary legislation but one which raises issues of considerable importance about the powers of the state and the way that the Government choose to legislate. I can tell the noble Countess, Lady Mar, that the words "mission creep" occurred to me early on in my research for this debate.

The Minister must understand the concern that these powers are following the way in which other organised crime and anti-terrorism powers are being overused and abused. This stems from the fact that the Regulation of Investigatory Powers Act was originally used by only nine organisations. Now this has been extended to over 800; my noble friend Lord Onslow cited some of them. This order derives, of course, from the Proceeds of Crime Act 2002, which I accept immediately had considerable merit. It was presented at the time as the means by which the police and HMRC would be able to confiscate the ill-gotten gains of serious-note the word serious, as my noble friend Lord Onslow and others have-criminals.

There are few among us who would disagree that seizing a yacht or fleet of luxury cars from someone with no apparent income, other than, say, selling stolen artwork or smuggling drugs, is not an unsuitable response by the state. However, as has been mentioned over and over again this afternoon, the powers which are being awarded by this order are out of all proportion to the crimes which will be relevant. It is difficult in the extreme to consider, for example, housing benefit fraud in this context, especially as we know how often fraud and error are confused in social security benefits. The noble Lord, Lord Thomas of Gresford, is right: this is overprovision in the extreme.

As my noble friend Lord Bowness pointed out, the list of bodies which will henceforth be able to seize assets, freeze assets and seek the forfeiture of cash is quite surprising. Local councils in England and Wales will have this power. Royal Mail, Transport for London and the Department of Health, among others, will be given the appropriate power. At the commencement of the Act, that was a matter reserved for police and officers of HMRC. Under this order, these other "financial investigators" can step in and seize property if they-which presumably means their employees above a certain rank, details of which are stated religiously in the order-have been trained and accredited by the National Policing Improvement Agency. The noble Baroness, Lady Hamwee, commented on that. Does the Minister really think that that is a suitable arrangement?

The Minister may well argue that because training is to be conducted by the NPIA, there is nothing to worry about. That this training should take place goes

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without saying, but should it be provided in the first place to employees of councils, the Royal Mail and other organisations? This order marks a considerable accrual of powers to the state by spreading around powers that one would have thought should be the exclusive preserve of the police and HMRC.

Like my noble friend Lady Buscombe, I noted that, alarmingly, paragraph 7 of the Explanatory Memorandum to the order states:

"Current policy is to limit access to these intrusive powers to appropriate public (rather than private) bodies".

Will the Minister confirm that it will never become policy to include private bodies in the list?

It is rather instructive to consider the comments of Paul McKeever, chairman of the Police Federation of England and Wales, in the Times. Those comments have already been well referred to. Moreover, an expert in asset recovery law has said that it is dangerous to place these powers in,

Given that only two years ago the Public Accounts Committee of another place criticised the lack of supervision of financial investigators by the National Policing Improvement Agency, which is to carry out this unspecified training, is this not an extremely valid concern? I am grateful to the noble Baroness, Lady Hamwee, for that point.

It is not enough for the Minister to respond that these powers will be used correctly and wisely. We know from past experience of this Government that unexpected consequences tend to turn up in their legislation. As we have heard, we have seen counterterrorism powers and surveillance laws used for purposes that could not possibly have been intended when the relevant provisions were drafted. For that reason, any extension of the powers of the state must be properly debated in Parliament. My noble friend Lord Onslow has, thankfully, given your Lordships' House that opportunity, and the Government would be well advised to take on board the concerns of noble Lords. The concerns include those mentioned in the report of your Lordships' Merits of Statutory Instruments Committee, which should give the Government pause.

Concerns about the order have come to light elsewhere, but the Home Office does not seem to be particularly bothered. No consultation took place beyond asking the bodies that are to get the new powers what they thought. It is no surprise that they responded "Yes, please". To paraphrase Mandy Rice-Davies, they would say that, wouldn't they?

The House will find it quite extraordinary that the police and HMRC were not consulted. Have they been consulted now? The committee also notes that by failing to consult more widely the Government have gone against the spirit of their own guidance on consultation, and I am grateful to the noble Lord, Lord Rooker, for pointing that out. That is far from satisfactory. No wonder we are about to have a Statement on smarter government.

This House prides itself on being a revising Chamber. However, revision is not appropriate for an order of this kind. That is why a better description of what we do is to advise-as my noble and learned friend Lord

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Howe has done-the Government of the day. The Minister has had such advice this afternoon. Unless we hear a convincing explanation, I am minded to recommend that noble Lords vote to support my noble friend's advisory Motion, despite the hesitation of my noble friends Lord Campbell of Alloway and Lord Neill, for the simple reason that we know that under this Government there is no going back, and added pressure will be important.

Lord Brett: My Lords, I think that it was the noble Lord, Lord Bowness, who paid tribute to the noble Earl for being a doughty defender of individual rights. I echo that; he is, indeed. Among his many attractive traits is that of never knowingly understating his case. I will therefore not comment on the Holy Roman Empire, the Thirty Years' War or even Bertie Wooster. I hope that I will not give noble Lords anodyne guff. I will try to meet the genuine fears in people's minds based on what they have seen in the past, and therefore fear might happen on this occasion. The noble Earl quoted part of an article in the Times of 28 October in which Paul McKeever, the chairman of the Police Federation, was quoted as saying:

"There is a behind the scenes creep of powers occurring here and I think the public will be very surprised. They would want such very intrusive powers to be kept in the hands of warranted officers and other law enforcement bodies which are vetted to a very high standard rather than given to local councils".

This seems to be part of the fear that there is a diminution in the authority of the individuals carrying out such activities. Some people were slightly surprised that this issue had not been raised previously. However, it is perfectly understandable that the article in the Times drew your Lordships' attention to the issue. I will try to allay the concerns that your Lordships have expressed.


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