HC Deb 27 February 2002 vol 380 cc773-80

'(1) Section 18 of the Anti-terrorism, Crime and Security Act 2001 (restrictions on disclosure of information for overseas purposes) applies to a disclosure of information authorised by section 429(1)(a) or (b) or 433(1)(a) or (b).

(2) In the application of section 18 of the Anti-terrorism, Crime and Security Act 2001 by virtue of subsection (1) section 20 of that Act must be ignored and the following subsection is substituted for subsection (2) of section 18 of that Act—

"(2) In subsection (1) the reference, in relation to a direction, to a relevant disclosure is a reference to a disclosure which—

Brought up, and read the First time.

Mr. Foulkes

I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker

With this it will be convenient to discuss the following: Amendment No. 69, in clause 429, page 249, line 37, leave out paragraph (a).

Amendment No. 70, in page 249, line 39, leave out paragraph (b).

Government amendments Nos. 237 to 250, 252 and 254.

Mr. Foulkes

I am pleased to be at the Dispatch Box, even at this late hour. I was beginning to feel a bit redundant—almost superfluous, even a supernumerary. However, I am glad that I now have the opportunity to move new clause 10.

New clause 10 would bring the powers in clauses 429 and 433 to disclose information for the purposes of an overseas criminal investigation or overseas criminal proceedings within the scope of section 18 of the Anti-Terrorism, Crime and Security Act 2001. Section 18 of that Act provides power for the Secretary of State to issue a direction to restrict disclosure of information for overseas purposes. The power may be exercised when it appears to the Secretary of State that the overseas investigation or proceeding relates to a matter in which it would be more appropriate for any investigation to be carried out by the authorities of the United Kingdom or a third country.

We believe that if the Secretary of State makes such a direction in respect of the bodies covered by the 2001 Act, the restriction should also apply to the director, the Lord Advocate or the Scottish Ministers when they make a disclosure in relation to overseas criminal investigations and proceedings. It would not be consistent to allow for such a disclosure to be made under the Bill, when other bodies might be prevented from disclosing information.

The new clause specifically provides that section 18 of the Anti-Terrorism, Crime and Security Act applies to disclosures by the director under clause 429(1)(a) or (b) and clause 433(1)(a) or (b).

I now come to Opposition amendments Nos. 69 and 70.

Mr. Wilshire

Very good!

Mr. Foulkes

The hon. Gentleman, who migrates between being a Whip, a Back Bencher and a Parliamentary Private Secretary—he is a multi-purpose Tory Member—says that the amendments are very good.

Mr. Wilshire

Having given me three roles, would the Minister care to tell the House which one I am best at?

Mr. Foulkes

Yes, I would. I think that he is probably best as a Back Bencher.

Mr. Carmichael

He has a better future as a Back Bencher.

Mr. Foulkes

Indeed he does. I am grateful to the hon. Member for Orkney and Shetland (Mr. Carmichael), as I was in Committee, for giving me the opportunity to respond more effectively.

Clause 429(1) sets out the purposes for which the director may disclose information. Amendments Nos. 69 and 70 would delete the paragraphs that would allow the disclosure of information for the purposes of a criminal investigation or for criminal proceedings, whether in the United Kingdom or elsewhere.

When we discussed this issue in Committee, the concern was that clause 429(1)(a) and (b) would mean an increase in the powers of the law enforcement authorities, in particular that they could be passed information obtained under powers that were not available to them but were available to the director. I recall that debate, as I am sure that the hon. Member for Spelthorne and others do. We said in Committee that we would reflect further on whether this concern was covered by the judicial approval that is required for the exercise of the director's powers.

7.45 pm

I can now tell the House that we are not convinced that there is the scope for abuse suggested in Committee, in terms of cases being referred to the director with the intention of the director using his powers for the benefit of the law enforcement agencies. There will be memorandums of understanding about the cases to be taken on by the director, and any abuse of the powers would soon become evident. The director can only act within his powers, so he can seek the part 8 orders only to help with the exercise of his functions. All these orders are subject to judicial oversight—an extra safeguard—and it is very unlikely that an order would be granted if it were sought for the wrong reason.

We certainly do not agree that the director should be prevented from disclosing any information for the purposes of a criminal investigation or proceedings, which would be the effect of the amendments. That would prevent the passing of information obtained through means unavailable to the law enforcement agencies, which seems unnecessary. But—having, perhaps, been unhelpful to Conservative Members on that matter—we accept that there is concern that, under the Bill as it stands, information obtained by the director under a disclosure order could be disclosed to the law enforcement authorities.

The disclosure order is a particularly far-reaching power; it is granted to the director alone, solely for use in confiscation and civil recovery investigations. We accept that there is an issue with the idea that information that the law enforcement authorities could not have obtained through the exercise of their own powers might be made available to them through disclosure by the director. We therefore propose that restrictions should be placed on the disclosure of information that the director has obtained under a disclosure order, so that it could not be disclosed for the purposes at clause 429(1)(a) and (b). I can tell the Conservative spokesman that we will consider further whether such information obtained under a disclosure order should still be disclosed for the other purposes set out at clause 429(1).

It has not been possible in the time between Committee and Report to table an amendment to achieve this. We need, for example, to ensure that any amendment takes account of the limited uses to which information disclosed in a disclosure order can be put in criminal cases by virtue of the provisions of part 8 of the Bill. But I can assure hon. Members that we intend to table such an amendment in another place. I hope, in the light of that, that hon. Members will not press amendments Nos. 69 and 70 to a vote.

Amendments Nos. 237 to 250, 252 and 254 all relate to how the information disclosure provisions in part 10 will operate in Scotland. I shall start with amendment No. 237 as it stands. [Laughter.] I am sorry. I was slightly distracted then. I was about to say that I was pleased to see the three hon. Members from the Scottish National party here today, as we did not see them in Committee.

Mr. Weir

I am sorry that the Minister has interrupted his speech to make such a cheap shot, but I am not at all surprised. This just proves that he was quite correct to predict his redundancy at the start of his speech.

Mr. Foulkes

How shall I respond to that? I think that I shall ignore it.

I return to amendment No. 237, and this time I shall get it right. As it stands, clause 430 provides for the exchange of information between the Lord Advocate and the Scottish Ministers in connection with their respective functions under parts 3 and 5 of the Bill. However, clause 433 already provides that the Lord Advocate and the Scottish Ministers may disclose information to each other for the purposes of their functions under parts 3 and 5. As most of clause 430 is already covered by clause 433, our intention is to delete clause 430 and amendment No. 237 would achieve that.

Mr. Hawkins

I am grateful to the Minister for giving way. We have some sympathy with the complexity of the Minister's brief, but what just happened to him reminds me of the newsreader who announced, "The time is 7 pm Greenwich. Meantime, here is the news."

Mr. Foulkes

I am sure that I will find another, more appropriate occasion to use that.

There is only one aspect that is not currently covered by clause 433. Clause 430 provides that the Lord Advocate can disclose to the Scottish Ministers information that he has obtained in connection with the exercise of his functions under chapter 3 of part 5 of the Bill. That chapter deals with the recovery of cash and that the procurator fiscal has a role in the initial detention of the cash. If there is not to be a criminal prosecution, the matter passes to the Scottish Ministers to consider forfeiture. It is clearly important that any information the Lord Advocate has obtained in the first stages of the cash seizure be disclosed to the Scottish Ministers so that they can consider forfeiture. Amendment No. 243 therefore adds an appropriate reference to clause 433.

Amendments Nos. 238. 240 to 242, 244 and 245, are purely drafting amendments. I could explain what each of them does, but in view of the time that would not be sensible.

After the intervention by the hon. Member for Angus (Mr. Weir) about Sewel motions, I suddenly realised why yesterday's exchange was so unfruitful. The hon. Gentleman completely misunderstands the nature of Sewel motions. He seems to think that once a Sewel motion is passed, and the Scottish Parliament knows what is in the draft Bill that is agreed on Second Reading, that is that, and there can be no further changes and that once it has been approved by the Scottish Parliament, a Bill is immutable.

Surely the whole purpose of a Sewel motion is to return to Westminster the power to legislate on devolved areas. That implies that when provisions are considered in Committee and on Report, particularly in relation to Scottish matters, amendments can be considered and, if necessary, agreed to. That is inherent in the nature of the exercise.

Mr. Carmichael

I understand the Minister's analysis of Sewel motions. Does he agree, however, that the process raises some difficulties, particularly in view of the consequences? It is important that we should not be left with unamended and improperly considered legislation. Of course amendments should be made in Committee, but that raises difficulties. Will the Minister return to the point that we need some mechanism whereby we can have proper dialogue between parliamentary scrutiny here and the Executive functions in Edinburgh?

Mr. Foulkes

I agree. Of course there needs to be dialogue. I was saying simply that we need the flexibility to consider amendments in Committee and on Report.

Mr. Weir

Will the Minister give way?

Mr. Foulkes

I am still replying to the hon. Member for Orkney and Shetland (Mr. Carmichael).

After yesterday's exchange, I discussed the matter with my right hon. Friend the Secretary of State. We are looking again at the way in which Sewel motions work, we shall discuss it with the Scottish Executive and no doubt we shall have an opportunity to report back to the House. I hope that that will be helpful

Mr. Weir

I thank the Minister for giving way, but I think that it is he who misunderstood the point. If he reads the minutes of the meeting of the Select Committee on Scottish Affairs last November when we discussed the matter in great detail, he will find that I made the same point that I repeated yesterday—that if there are substantial amendments, the Bill should go back to the Scottish Parliament. The Minister agreed with me in November. I asked him yesterday when he had changed his mind and he still has not answered that question. What he is saying today does not change anything. I never argued that Westminster could not change legislation, but whether major changes should go back to the Scottish Parliament.

Mr. Foulkes

The hon. Gentleman is a nitpicker even when there are no nits to pick—[Interruption.]

Mr. Deputy Speaker

Order. The Minister gave the hon. Gentleman the opportunity to pick the nit.

Mr. Foulkes

You are absolutely right, Mr. Deputy Speaker, and I shall take your advice and be very careful in future.

I have answered the hon. Gentleman's question on two previous occasions. It does not need to be answered a third time. I am glad that I made my positive and substantive points in response to a Liberal Democrat Member rather than to one of these awful interventions from the SNP.

I invite hon. Members not to press amendments Nos. 69 and 70 in view of my explanation and support new clause 10 and amendments Nos. 237 to 250, 252 and 254.

Mr. Grieve

I greatly welcome the Minister's remarks about our amendments Nos. 69 and 70 to which I shall return in a moment. I also welcome new clause 10, which provides a measure of definition about what can be disclosed for overseas purposes on a subject which caused quite a lot of anxiety in Committee, as the Minister will recollect.

Reading the particular clause of the Anti-terrorism, Crime and Security Act 2001, I am not entirely persuaded that it lays down any criteria about the danger of an exchange of information in the circumstances that we discussed in Committee, where it might be used for purposes that were highly prejudicial to the individual concerned and where, for instance, the right to a fair trial might not be obtainable. I hope that the Minister understands my point. That may be something that can properly be the subject of guidelines and codes of practice.

I also appreciate that it is difficult for Parliament to legislate a framework that will stand the test of time. Some countries might slip in and out of the levels of acceptability that we would expect in terms of their judicial procedures, for instance, but I hope that the Minister will take on board that there is a legitimate area of anxiety that in exchanging information the director must have regard to the rights of the individual whose confidential information he is handing over to a foreign authority.

Of course, in the desire to seize assets that is a perfectly acceptable activity, but it will not become so, and the whole framework will be brought into disrepute, if there is any suggestion that that information is not really being used for a legitimate purpose but, potentially, to persecute the individual in terms of his private wealth and finances in that country. This is a serious problem and one to which the director will have to be alive. I raise it because amendments Nos. 69 and 70 would have prevented disclosure to a foreign power in terms of criminal investigations elsewhere so it dovetails slightly with Government new clause 10. The two issues are linked and have been correctly grouped by the Clerk.

I certainly will not press amendments Nos. 69 and 70 as the Minister has given some important assurances which I shall not repeat. He has clearly completely understood the point that was made in Committee that we are giving the director substantial powers, which in many respects appear much wider than those of any ordinary law enforcement agency. The purpose of that—as the Minister rightly said—is to seize the proceeds of crime, not to prosecute people. If a situation arises in which that information is handed over to another Government law enforcement agency for the purpose of prosecution, where that information would not have been available to it under its ordinary powers, there is an important issue.

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Although I accept the Minister's point that the way in which the legislation is framed could not make the director the poodle of that other law enforcement agency—because the director's powers are circumscribed to the obtaining of information for his own purposes; nevertheless it is likely that in the course of obtaining information for his purposes the ARA could obtain information that might be used for the purposes of a criminal prosecution.

I realise that that raises a difficult issue. It is legitimate for people to say that if the information shows the commission of serious crime and if it could be useful for the prosecution of an offender, it should be used—no matter how it was obtained. However, that gives rise to an important point. In those circumstances, is it proper to hand over information when Parliament has not seen fit to provide similar powers to the law enforcement agency—which is likely to be the police or the Customs—in the course of the agency's own inquiries? The guidelines will have to be considered carefully and amendments may have to be made in another place. However, mindful of the Minister's assurance, I shall not press the amendments to a vote.

Mr. Carmichael

I warmly welcome the assurances given by the Minister on the use of disclosure orders. Those provisions are especially draconian and in the case of such powers it is incumbent on the state agencies charged with their execution to do so with every care. It is also incumbent on us to circumscribe as far as possible the manner in which such powers are executed. I look forward to hearing from the Minister the restrictions that he proposes and the manner in which he envisages that they will be carried out.

I also welcome the hon. Gentleman's remarks about Sewel motions. With the indulgence of the Chair, those points might be developed at slightly greater length during Third Reading, which is nearly upon us.

Mr. Davidson

I want to raise a couple of points. The first relates to the passage of information to foreign regimes. There must be a balance. We need to bear in mind the fact that some foreign jurisdictions are deeply corrupt and thus cause major difficulties for people who want to combat international drug dealing and money laundering. On the other hand, we must avoid giving guilty people the opportunity of playing off one regime against another by making civil or human rights arguments. I hope that any guidelines will reflect that.

Secondly, will the Minister clarify whether the effect of the Conservative amendments Nos. 69 and 70 would be to stop any information at all—not merely that under disclosure orders—being passed to the authorities? If a person had confessed to a range of offences, including murder or arson, could that information be passed to the appropriate police or judicial authorities? It would not be the case that none of it was "handable overable"—if I may use that made-up phrase—[Interruption.] I think it is a good one.

There was an interesting discussion of Sewel motions. Did the Minister—as I did—interpret the interventions of Scottish Nationalist Members as an excuse? Thus, although we originally thought that sloth and idleness had prevented them from attending the Committee debates, in fact they did not attend because they thought that they would have the chance to deal with these matters in the Scottish Parliament. As the provisions are extremely tough, presumably any intervention hon. Members would have made would have weakened them and would have been much to be deplored.

Mr. Foulkes

The debate has been interesting. We are grateful to the hon. Member for Beaconsfield (Mr. Grieve), who spoke for the official Opposition, for his welcome. It was indicative of the way that the Bill was dealt with in Committee and on Report. As many hon. Members have said, there has been to-ing and fro-ing. I have not served on a Standing Committee for a long time—

Mr. Wilshire

That is obvious.

Mr. Foulkes

Yes, it is very obvious. When I was last a member of a Standing Committee, a different Government were in power and we were not given nearly as many concessions or nearly as much sympathy and understanding. We shall of course take note of the points made by the hon. Member for Beaconsfield and return to them at a later stage.

We always take into account the comments of my hon. Friend the Member for Glasgow, Pollok (Mr. Davidson). I hope that he understands that we need to exchange information to comply with our international obligations. That is clear from the framework of those obligations to which we are a signatory. We shall bear it in mind that although the disclosure of information to certain regimes would not be appropriate, it would be in the case of democratic Governments with whom we have ordinary and good relations.

The debate has been a good one. I am glad that we were able to get to it and that we could participate so fully. As has been said on several occasions, we are deeply delighted that those SNP Members who were unable—

It being four and a quarter hours after the commencement of proceedings on consideration of the Bill, MADAM DEPUTY SPEAKER, pursuant to Order [26 February], put forthwith the Question already proposed from the Chair.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

MADAM DEPUTY SPEAKER then proceeded to put forthwith the Questions necessary for the disposal of the business to be concluded at that hour.

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