HL Deb 25 February 2003 vol 645 cc214-30

8.54 p.m.

Consideration of amendments on Report resumed.

Clause 35 [Account information]:

[Amendment No. 48 not moved.]

Lord Goodhart moved Amendment No. 49: Page 20, line 35, after "into" insert "serious

The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 50, 54, 55, 60 and 61. The amendments form part of a single unit and were raised in Committee.

Under the Bill, two types of order can be made relating to information about banking transactions. One is a customer information order; the second is an account monitoring order. I do not propose to go into the details of what they involve but, broadly speaking, a customer information order requires a bank to indicate what different accounts a particular person may have with it, and an account monitoring order enables transactions on a particular account to be kept under scrutiny.

A customer information order can be made only for the purpose of investigating serious criminal conduct. Such conduct is defined in the Bill as an offence to which paragraph 3 of article 1 of the 2001 protocol applies. However, an account monitoring order may be made for the investigation of criminal conduct, whether serious or not. Serious crime, as defined by paragraph 3 of the protocol, means an offence that is punishable by prison for a period of not less than four years in the requesting state, and not less than two years in the requested state.

It is not clear why there is a distinction between a customer information order and an account monitoring order in that respect, in either the protocol itself or the Bill. In Grand Committee, the noble Lord, Lord Filkin, said that account monitoring orders were focused on specific identified accounts and were therefore less resource-intensive for financial institutions. I can understand that to be the case. However, what is perhaps more important is that there is little difference from the point of view of the account holder. Both the orders are highly intrusive from that point of the view.

The purpose of the amendment is to raise the standards for account monitoring orders to serious criminal conduct, which is the same standard as for customer information orders. Therefore, it would obviously not increase the burden on financial institutions. Indeed, if it reduced the number of account monitoring orders, it would slightly reduce the burden.

The amendment would protect account holders from intrusive monitoring. In all cases where an account monitoring order would be appropriate, I believe that crimes are involved such as organised fraud, drug dealing and person trafficking, where the penalty would anyway be above the minimum for serious crime. It seems to me at least highly doubtful whether account monitoring orders would be used to any significant extent for offences where the investigation was not into a serious crime.

Therefore, the balance between intrusiveness and crime prevention, which in this case has been got right for a customer information order, is wrong for an account monitoring order. The trigger for that order should be the same as for a customer information order— investigation into a serious crime as defined in the Bill and the protocol. I beg to move.

9 p.m.

Lord Filkin

My Lords, I am grateful to the noble Lord, Lord Goodhart, for speaking so clearly about the central thrust of his amendment. As we know from our discussions in Committee, he understands the distinction between account monitoring orders and customer information orders and the levels of criminality involved. I shall therefore not speak at length. I shall explain why the protocol is as it is—it is the product of considerable deliberation between the United Kingdom and other European Union member states over a substantial period.

The reason for the restriction in relation to tracing accounts was explained in Committee: as the noble Lord, Lord Goodhart, signalled, such requests are likely to place significant demands on the resources of countries without central bank registers, and it was judged that there is a need for proportionality between the crime in question and the measure requested. The protocol explicitly states that the obligation to assist under Article 1 is limited to those cases which we have described, for simplicity, as involving "serious criminal conduct", as defined in Clause 46(3) of the Bill. The reasons for not having an equivalent restriction in relation to account monitoring orders are perhaps less clear and merit further explanation. We do not consider that a parallel restriction in relation to account monitoring would reflect the aims of the drafters of the protocol or make full use of the opportunities available to us as the requesting state.

Article 3 of the protocol creates an obligation for member states to be able to monitor activity in specified accounts. During negotiations, as I signalled, it was not considered necessary expressly to limit that obligation only to certain types of serious offence, in contrast to Article 1. Requests for monitoring will be targeted at an already identified account and so will not place such a burden on banks—and we can already provide historical details of activity in such accounts even without new legislation.

As the noble Lord, Lord Goodhart, signalled, that did not lie behind the amendment; if I understood it correctly, that involved more an argument about balancing the civil liberties of the person whose account, unknown to them, might be being monitored against the potential level of serious criminality—or otherwise—of the suspected person. I understand that argument but I am unsympathetic to it.

The fact that we are defining some offences as "serious" in the Bill does not imply that the other offences of which a person is suspected of being connected with or potentially guilty of but which do not meet the strict tests—if I have them right, they are a maximum period of at least four years in the requesting state and at least two years in the requested state—are not serious. They simply do not meet the test. I should be happy to give a list of examples of offences that do not meet the test of being "serious" as defined in the clause to which I referred previously but which under any common-sense meaning of the word are seen by the public as being serious.

The view that we should not use legitimate, properly tested conditional and proportional powers of the state to try to find out whether criminality is going on because it is argued that it is best to protect the civil liberties of the suspected criminals is deeply unconvincing. We will not use the powers willy-nilly; they will be used although they are burdensome to the requesting states, the officiating states and the courts. It will require effort to use them but we must use them and monitor accounts when there is a suspicion that people have committed offences.

A further point is that in some cases people will be traced through account monitoring orders who may, to use the patois, be the small fish in events but they may lead us to the bigger people. For that additional reason, I am deeply unsympathetic to the restriction.

I am sure that this is a probing amendment and that it is intended to tease out the Government's perspective. For the reasons that I have given, we do not expect there to be thousands of such monitoring orders. My recollection is that our best estimate is that at most there will be about 500 a year in those circumstances. These are people whom other international bodies believe to be potentially involved in criminal activities. Irrespective of the fact that we would be non-compliant with the protocol, not using these powers would seem to us to go completely against the thrust of government policy. I hope that the House will be sympathetic to that argument.

Lord Goodhart

My Lords, the amendment is intended seriously and not merely as probing. I am a little unhappy with the nature of the noble Lord's response to it, because I believe that there is a potential problem here of excessive intrusion into individual privacy. Of course, I recognise that the exercise of government powers in any individual case will be subject to control under Article 8 of the European convention. If it is used disproportionately, there will be a form of judicial control over it.

Having raised the issue, in the circumstances I am not minded to press the amendment further. I simply hope and trust that the Government, or rather the responsible authorities—obviously decisions will not be taken at anything like ministerial level—will bear in mind that the powers which are given must not be used intrusively or disproportionately. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 36 [Making, varying or discharging account monitoring orders]:

[Amendment No. 50 not moved.]

Clause 37 [Customer information]:

[Amendment No. 51 not moved.]

Clause 38 [Making, varying or discharging customer information orders]:

[Amendment No. 52 not moved.]

Clause 40 [Account information]:

[Amendments Nos. 53 and 54 not moved.]

Clause 41 [Making, varying or discharging account monitoring orders]

[Amendment No. 55 not moved.]

Clause 43 [Information about a person's bank account]:

[Amendments Nos. 56 to 59 not moved.]

Clause 44 [Monitoring banking transactions]:

[Amendments Nos. 60 to 62 not moved.]

Clause 45 [Sending requests for assistance]:

[Amendment No. 63 not moved.]

Viscount Bridgeman moved Amendment No. 64: After Clause 45, insert the following new clause—

"ANNUAL REPORT ON EFFECTS OF REQUESTS FOR BANKING INFORMATION

(1) The Secretary of State shall publish each year a report on the effects of requests for banking information introduced under this Act.

(2) In each report under subsection (1) the Secretary of State shall include—

  1. (a) a cost assessment of complying with requests for information,
  2. (b) the frequency of requests from participating countries, and
  3. (c) the time taken to comply with requests."

The noble Viscount said: My Lords, in Amendment No. 64, standing in my name and that of my noble friend Lady Anelay, we return once again to the subject of annual reports. This is not a probing amendment. It concerns an issue which we raised in Grand Committee and to which we want to return again.

Many noble Lords who spoke in Committee agreed with us in principle that, as we are breaking new ground with the banking section of the Bill, parliamentarians have a right to know the cost to the taxpayer of complying with requests. I understand the point that the Minister made in response to this amendment in that an annual report would require resources. However, I cannot agree with his statement that those would be disproportionate or a potential waste. He has. after all, reminded us that, in any case, the cost to the banking industry of complying with the regulatory impact assessment will be between £1.26 million and £3.7 million a year.

It is essential that there is transparency in this matter. As my noble friend Lord Renton and the noble Lord, Lord Monson, pointed out in Committee, we are in uncharted waters. In our view, in terms of monitoring, it is insufficient to rely on the odd parliamentary Question to check on what is an unfamiliar procedure but one that is absolutely crucial to the effective operation of this part of the Bill. The BBA has also stated that it is completely behind the measure that we propose, and it believes that the debate in Grand Committee showed the important issues involved.

A report would also put pressure on the Home Office to meet another concern that the BBA has in relation to the partial regulatory impact assessment—the PRIA—of the protocol to the Convention on Mutual Assistance in Criminal Matters between EU member states. After supporting the convention but noting that it had to be on the basis of mutual benefit, the BBA said—I hope that your Lordships will permit me to quote this: The UK, and the information which the UK will, potentially, be able to obtain will not be less or less timely than that which the UK will normally provide. Differences could arise through., for example, different legal procedures or bank secrecy rules, in particular where the retail banking structure is less concentrated than in the UK. Such differences could reduce the benefits for more ready access to information in response to requests for mutual legal assistance".

An annual report will help to establish the extent to which there is a level playing field both in theory and in practice.

I return to a remark made by the Minister; namely, that he will consult the BBA when the Government reconsider the process for handling requests for information once an order has been made. He also stated that he would consult other relevant bodies. Would it be possible for him to name them now? That would help us to see how widely the Government are consulting on the issue. I beg to move.

Lord Bassam of Brighton

My Lords, I am delighted that the noble Viscount has moved this amendment as it gives us a chance to return to our favourite topic of annual reports. I shall not level my common allegation that when stuck for an amendment one dreams up an annual report to demand.

I see the point made by the noble Lord. Our argument is that an annual report is unnecessary and burdensome. On a matter of costs, a balance has to be struck as to whether the potential evil that it is attempting to monitor is outweighed by the evil of the unnecessary activity. In our view it is the latter case.

We would not want noble Lords to believe that we are not concerned about costs. For that reason we have had detailed and intricate consultation in the preparation of the Bill and we have been careful to consult the BBA. At an earlier stage in the proceedings on the Bill we undertook careful inquiries with the BBA to see whether in general it was happy with the arrangements that we are putting in place. My understanding was that that was the case.

We believe that costs should be kept to a minimum. We shall be careful in our approach to the whole issue. As regards reviewing procedures on an annual basis, although the matter covered in the amendment will be monitored, we believe that the requests and the return of evidence obtained under them will be routed via the Secretary of State and that costs will be kept to a minimum. The absence of a requirement for an annual report does not mean that the effects of the new processes and procedures will not be monitored, nor that the banking industry will be excluded from any future consultations on the subject. We intend that they will be consulted.

I am sure noble Lords will be aware that the procedures are not unique to this Bill. They mirror procedures put in place through the Proceeds of Crime Act and they will be available to domestic investigators as well as to overseas authorities. It may be worth reminding ourselves that there is no parallel requirement for an annual report on the use and operation of proceeds of crime procedures, although they make much the same demands. It will take banks as long to comply with a domestic request made under that legislation as one made under the protocol. I do not recall a large demand for annual reporting on the proceeds of crime processes.

We shall not look at customer information and account monitoring orders made under the protocol in isolation. I give that clear undertaking. As regards the provisions in the Bill, we shall have the advantage of seeing how effectively the relevant provisions of the Proceeds of Crime Act operate in practice. It is worth reminding ourselves that those measures came into effect yesterday with the launch of the asset recovery agency.

An annual report dealing only with requests made under Chapter 4 of the Bill would not represent the whole picture. Other, less formal, more practical monitoring methods may well be better suited. It will soon become apparent if those orders place an onerous burden on the banking industry or take a very long time to execute. It is worth reminding ourselves that in general costs will be borne by the requested state, which will have to meet the cost of compliance when a request is made, unless there is a particular agreement to the contrary where exceptional costs may arise. The amendment is unnecessary. It will not reduce costs burdens. For those reasons, we oppose it.

The noble Lord asked what other bodies we might consult. I cannot provide him with a full list at this stage. We shall consult the financial crime team which implements the Proceeds of Crime Act. We shall seek to share experience with it. We shall continue to consult the BBA. No doubt it will wish to advise us of relevant bodies which should be consulted. Therefore, we intend to listen; we shall be sensitive as to how these measures are applied; and we shall actively pursue our commitment to consultation.

9.15 p.m.

Baroness Carnegy of Lour

My Lords, before the noble Lord sits down, I do not think he commented on my noble friend's point about the bankers' desire to have a level playing field. Banking, as he well knows, is an international business these days. Different arrangements in different countries pertain in banks. Will the Minister make sure that in future consultations the British Bankers' Association is asked whether the arrangements are fair vis-à-vis banks in the various countries involved? Perhaps he will comment on that matter.

Lord Bassam of Brighton

My Lords, we are sensitive to that issue. This is a mutual agreement. One would expect that, just as there will be costs on banks in the UK, if we or other states seek information in other jurisdictions costs will be incurred there. I made it plain that the general international rule is that the requested state meets the cost of compliance with the request in most circumstances.

To that extent, there is a commitment to a level playing field. We are sensitive to the point. We shall listen carefully to what the BBA says on that precise issue because it is only right that we should play our part in ensuring that that level playing field exists.

Viscount Bridgeman

My Lords, I am most grateful to my noble friend Lady Carnegy for raising that point. Earlier, it was clear that countries outside the EU—indeed, outside Schengen—could be admitted to the scheme. I certainly understand the argument so persuasively advanced by the Minister for relying on parliamentary process to hold the Government to account for the operation of this part of the Bill. But this is a virtually new aspect to banking supervision in the fight against international financial crime. In our view, there is a strong case for providing a formal report, available in the Library of both Houses. To rely on a random sequence of parliamentary Questions is not an acceptable alternative. I beg to test the opinion of the House.

9.19 p.m.

On Question, Whether the said amendment (No. 64) shall be agreed to?

Their Lordships divided: Contents, 23; Not-Contents, 57.

Division No. 4
CONTENTS
Anelay of St Johns, B. Carnegy of Lour, B.
Astor of Hever, L. Cope of Berkeley, L. [Teller
Blatch,B. Cox, B.
Bridgeman, V. Crathorne, L.
Brooke of Sutton Mandeville, L. Dixon-Smith, L.
Howe, E. Park of Monmouth, B.
Hunt of Wirral,L. Pearson of Rannoch, L.
Lyell, L. Saltoun of Abernethy, Ly
Masham of Ilton, B. Seccombe, B. [Teller]
Stodart of Leaston, L.
Northbrook, L. Waddington, L.
Northesk, E. Wakeham, L.
NOT-CONTENTS
Andrews, B. Greaves, L.
Barker, B. Grocott, L. [Teller]
Bassam of Brighton, L. Hardy of Wath, L.
Berkeley, L. Harris of Haringey, L.
Borrie, L. Haskins, L.
Brennan, L. Hogg of Cumbernauld, L.
Brooke of Alverthorpe, L. Hunt of Kings Heath, L.
Brookman, L. Jones, L.
Burlison, L. Lester of Herne Hill, L.
Campbell-Savours, L. Livsey of Talgarth, L.
Carter, L. Lofthouse of Pontefract, L
Corbett of Castle Vale, L. McIntosh of Haringey, L. [Teller]
Crawley, B.
Davies of Coity, L. Mackie of Benshie, L.
Davies of Oldham, L. Mar and Kellie, E.
Dixon, L. Orme, L.
Dubs, L. Randall of St. Budeaux, L.
Evans of Parkside, L. Rea, L.
Evans of Temple Guiting, L. Russell, E.
Farrington of Ribbleton, B. Shutt of Greetland, L.
Faulkner of Worcester, L. Simon, V.
Filkin, L. Smith of Leigh, L.
Fyfe of Fairfield, L. Stone of Blackheath, L.
Gale, B. Taylor of Blackburn, L.
Gilbert, L. Thornton, B.
Golding, B. Tordoff, L.
Goldsmith, L. Whitty, L.
Goodhart, L. Wigoder, L.
Gould of Potternewton, B. Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

9.28 p.m.

Clause 47 [Transfer of UK prisoner to assist investigation abroad]:

Baroness Anelay of St Johns moved Amendment No. 65: Page 28. line 9, at end insert "except with the permission of the Secretary of State

The noble Baroness said: My Lords, in moving Amendment No. 65, I shall speak also to Amendment No. 67. We now turn to a different issue: the transfer of prisoners in order that they can help in criminal investigations in participating countries overseas. I have grouped the amendments so that we can deal with the case of a prisoner in the UK being transferred abroad and with the case of a prisoner overseas being transferred here to give evidence.

We are told that the new power is unlikely to be used frequently. I accept that it could be useful if a prisoner who is helping a UK investigation might be able to identify a site or take part in an identification parade. The clause says that, if the Secretary of State has an agreement with the competent authority of a participating country, he can issue a warrant that will make it possible to transfer a prisoner to a participating country. So far, so good, but, in Committee, I raised the issue of the consent to the transfer given by the prisoner or by someone with the authority to act on his behalf, if he is incapable of making a decision for himself.

The problem is that the Bill states that once the warrant has been issued, that is it— the consent cannot be withdrawn. I am aware that the Law Society is opposed on principle to a provision that makes the giving of consent an irrevocable act. My approach has been more commonplace and practical.

My amendments today are slightly different. They are tabled in an attempt to determine whether my objective of fairness and practicality can be met within the Government's reasonable objective— which I fully support—of ensuring that prisoners should give evidence when it is material to a criminal investigation.

I understand that Clause 47 builds upon existing legislation in the 1990 Act. However, I believe that the Bill gives the opportunity to plug the loophole in the original legislation at a time when we are introducing, as the noble Lord, Lord Bassam, said in Grand Committee, some slightly different arrangements".—[Official Report, 27/1/03; col. GC 151.]

The loophole to which I am referring is that consent cannot be revoked.

What happens if the inability of the prisoner to act on his own behalf develops after consent has been given? What if he remains capable of giving consent but, having given it, becomes seriously physically ill? In Grand Committee, the Minister's response (at col. GC 151 of the Official Report of 27th January 2003) was to offer assurance that a decision to make the transfer was done only after extensive consultation with all parties.

Surely the point is that consent may be given at a time when the person involved is well and able to participate. Trouble may develop later. The Minister admitted in Grand Committee that between the giving of consent by the prisoner and his transfer, there will inevitably be some period of delay, perhaps a matter of weeks or a month at the most".—[Official Report, 27/1/03; col. GC 155.]

That is time enough in which physical and/or mental problems could set in.

The Minister said that unfit prisoners would not be made to travel even though there is no protection in the Bill, but then admitted that if mental problems developed, it is extremely unlikely that any pressure would be put on that person to continue his journey".—[Official Report, 27/1/03; col. GC 154.]

"Extremely unlikely" still leaves the possibility that pressure would be put on him to continue his journey.

Surely the argument should be that the provisions on the face of the Bill make it clear how proper procedures should be in place to ensure that the right decisions are taken in the right way at the right time. That is what I have sought to do in tabling the amendments. They are simple. I have given the Secretary of State the right to decide. The amendments say that consent cannot be withdrawn once the warrant has been issued, except with the permission of the Secretary of State. That solves the problem. If he decides not to transfer the prisoner, the opportunity is not only there, but it is actually a legal one for him.

I hope that seems reasonable. It is definitely a probing amendment to find a practical solution. I recognise, too, that there may be circumstances in which the Secretary of State may decide that it is so vital to investigation that the prisoner should be transferred and give evidence even though he or she is ill. I do not discount that— where a prisoner's evidence is so vital. I beg to move.

Lord Goodhart

My Lords, I support the amendments. They seem eminently sensible. It would be wrong to give the prisoner an absolute right to change his or her mind without giving any reason. That would encourage trouble-making. It seems that there are cases where there may be a genuine change of circumstances—illness or a number of other causes—which occur after the prisoner gave his or her original consent to transfer. It is plainly right that there should be a safety valve which would enable the consent to be withdrawn. Requiring the approval of the Secretary of State is a reasonable way of achieving that. There are alternatives, such as acquiring the approval of the court. However, I should be happy with the consent of the Secretary of State who would be bound to act reasonably in deciding whether to give that consent.

Lord Bassam of Brighton

My Lords, on the face of it, the amendment appears entirely reasonable. I appreciate that the noble Baroness, Lady Anelay, has gone some way to change her approach, but what we should focus on is how this is to work in practice. I hope that my remarks will persuade both the noble Baroness and the noble Lord, Lord Goodhart, that as the practical application of the provision works through—we should bear in mind that this will not be a frequent event—the care with which such transfers will be conducted means that the procedure will work well and to the benefit of all.

Having listened to the remarks of the noble Baroness and the noble Lord, I think that we are all agreed that, once granted, prisoners should not be able to withdraw consent for the practical reason that withdrawal of consent after a warrant has been issued might invalidate the warrant, so that the prisoner could not be held in legal custody. The noble Lord, Lord Goodhart, made the important point, which lends support to our position, that if we were to allow for consent to be withdrawn after a warrant had been issued, it would play fast and loose with the process and could give rise to future mischief.

We also agree that a prisoner who has given consent to be transferred should not be transferred if, between the time of giving consent and the date of the actual transfer, he becomes ill and unfit to travel. Other exceptional circumstances might arise where, even when the prisoner has consented, it might not be appropriate for him to travel, such as in the event of a national emergency in the destination country. However, we do not agree that it is necessary to provide for the prisoner to withdraw his consent in such circumstances.

I wish to repeat a point that I made in Committee; that is, the UK authorities would not transfer a prisoner if he were not medically fit to travel. A prisoner would not be transferred even if he insisted that he was well enough, if a doctor did not agree. That is an important point. Not only would it not be in the interests of the prisoner to be transferred when unfit to travel, I would argue that it would not be in the interests of the investigators. What use would an unwell prisoner be if he was incapable of helping with an investigation because it was clear that he could not give coherent responses due to a medical condition?

We take the view that there is no need to provide for the possibility of withdrawal of consent by the prisoner, even with the permission of the Secretary of State—kindly granted by the noble Baroness in her amendment. In the event that a prisoner becomes unfit to travel, the transfer will be suspended or cancelled. It is worth remembering that the warrant is generally issued at the very end of the process; that is, just prior to the transfer taking place.

The clauses reflect the terms used in Sections 5 and 6 of the 1990 Act. Those provisions have served us well. The provision regarding consent reflects exactly the position under that Act. The provisions have worked well so far and we will approach these matters sensitively. I have given an assurance on the health and fitness of the prisoner and his ability to travel. I have also reminded noble Lords that the issuing of the warrant is important and will in almost every case take place at the end of the process. Furthermore, I repeat that we are referring here to only a small number of cases in any given year.

That is the position. I hope that, having heard what I have said, the noble Baroness, Lady Anelay, will feel able to withdraw her amendment.

Baroness Anelay of St Johns

My Lords, I said that it was a probing amendment. I am grateful to the Minister for his response and for making it clear that the Government do not intend that people should travel if they are incapacitated.

I still believe that the situation is unsatisfactory in that there is not clarity about the issue of consent, but I do not intend to take the matter further. Both in Committee and on Report we have had helpful indications from the Government and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Filkin moved Amendment No.66 Page 28, line 22, leave out "(4)" and insert "(3A)

On Question, amendment agreed to.

Clause 48 [Transfer of EU etc. prisoner to assist UK investigation]:

[Amendment No. 67 not moved.]

Clause 51 [General interpretation]:

Lord Filkin moved Amendment No. 68: Page 30, line 17, leave out from "article" to "applies" and insert "3(1) of the Mutual Legal Assistance Convention

On Question, amendment agreed to.

Baroness Anelay of St Johns moved Amendment No.69: Page 30, line 49, at end insert— (2A) Each order made under subsection (2)(b) may only designate one country.

The noble Baroness said: My Lords, the orders under this proposed new subsection will be made to add a new country or countries to the list of participating countries. We have had many debates on what comprises a participating country. In Committee, the Government tabled welcome amendments to ensure that the orders would be subject to the affirmative procedure. That was in response to the report of the Delegated Powers and Regulatory Reform Select Committee and met the objective of amendments that I had tabled at that stage.

However, I had one remaining concern, which is the subject of the amendment, and that is that the Government may decide to list more than one country in each of the statutory instruments. If they did that, and noble Lords felt that it was objectionable that one or more of the countries on the list should be included, they would be in the invidious position of having to throw out the whole order as we cannot of course amend statutory instruments. We would have to throw out the baby with the bath water.

The question can justifiably be asked—would the Government do such a thing? Would they include something in an order which they knew would be objectionable alongside something that we would welcome? Their track record in these matters shows that they would. In Grand Committee I gave the example of changes to the TV licence fee, where an increase in the level of the licence fee above the usual rate was introduced at the same time and in the same order as the system whereby those over 75 were exempt from paying for the licence.

I know that that order was introduced by the DCMS, but is the Home Office any better? I am afraid it is not. The Terrorism Act 2000 allows for the same all-encompassing kind of order. Mr Jack Straw proscribed 15 or so terrorist organisations all at once back in 2001. As the Minister will recall, we on these Benches fully supported the Government on that then and we continue to support them. But Labour Back-Benchers, particularly in another place, were not so supportive of the Government at that stage. They disliked intensely the fact that the order was not amendable.

Given the extension of the proceedings in cooperation on international matters in the Bill, we shall need to scrutinise very carefully the list of participating countries. It is right that any statutory instrument should deal with only one country at a time.

The Minister rather side-stepped this issue in the letter he sent to noble Lords on 6th February. He confirmed that the Government, might wish indeed to designate different countries at different times in respect of different parts of the Bill, and the Bill would allow this".

That is exactly the point. I agree that the Bill allows that, and that is what I am worried about for the reasons that I have given. I beg to move.

Lord Goodhart

My Lords, I support the amendment. I remember in particular the orders under the Terrorism Act which contained a number of suspected terrorist organisations. Although we were on that occasion happy to agree that all of them should be included on the list, we were also concerned that there was a possibility that in other circumstances there might be names on such a list which we would not wish to see included. We believe that similar considerations apply to the designation of countries for the purposes set out in the Bill.

9.45 p.m.

Baroness Carnegy of Lour

My Lords, I support the amendment as well. The very nature of these orders means that the decision should be made clearly and should not be divisible into two or three parts on which the House might take different views. It is a misuse of our procedure to allow such a thing. The Government would be very wise to accept this amendment or one which has the same effect. It is really quite important.

Lord Bassam of Brighton

My Lords, the effect of the amendment would be that an order made to designate non-EU countries as participating countries in relation to any provision of this part could relate to only one country. This point was raised in Grand Committee when concern was expressed that an order might list a number of countries but one on the list might be objectionable to some members. The whole order might consequently be rejected, which would waste time and money. That being the case, I am still not convinced by the argument. We do not feel that we can accept the amendment.

Having to designate individual countries in separate orders subject to affirmative resolution would create vastly more work than the occasional rejection of one multiple order, which in any event I cannot imagine would happen in anything other than very exceptional circumstances.

Let us take just one clause as an example. We can designate countries as participating countries for the purpose of service of process under Clause 4. There is an article in the second additional protocol to the Council of Europe Convention on Mutual Assistance which provides for direct service in line with the M LAC provision. The Council of Europe has 44 member states and, even after enlargement, 19 will still be outside the European Union. So we could be faced with the prospect of designating 19 countries, each in individual orders, for the purpose of service of process, which is, after all, a very routine provision. Is this a sensible use of parliamentary time? I think that, on mature reflection, noble Lords will conclude that it is not. For that reason, we are satisfied that orders designating multiple countries are entirely appropriate.

I was intrigued by the parallels drawn with the terrorism legislation and the proscribed list of terrorist organisations. A rigorous appeals process was designed and allowed for in that provision. The fact that none of those organisations subsequently chose to exercise their right to go through that process is another matter. But there was full opportunity for debate on the nature of the order.

We do not think this is an efficient and effective way of proceeding or that it would be a sensible use of parliamentary time, and I think that I have provided your Lordships with a very good example of why that is so. I hope that, having heard that, the noble Baroness, Lady Anelay, will feel able to withdraw her amendment.

Baroness Anelay of St Johns

My Lords, I am grateful to the Minister for his response and for going into the detailed consequences of what might happen if, in the context of these orders, there were one country per order. I promise him that between now and Third Reading I will reflect on his response. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Anelay of St Johns moved Amendment No. 70: Before Clause 52, insert the following new clause—

"INTERNATIONAL ANTI-TERRORISM CO-ORDINATOR

The Prime Minister shall appoint a Minister of the Crown to co-ordinate international co-operation between the United Kingdom and other countries in respect of investigations into, and the prevention of, terrorism."

The noble Baroness said: My Lords, the amendment would insert a new clause to require the designation of a single Minister to co-ordinate the United Kingdom's efforts in international co-operation against terrorism. Noble Lords will be aware that responsibility is currently divided between several Ministers. The Prime Minister is in overall charge of intelligence and security matters. The Home Secretary is responsible for the Security Service. The Foreign Secretary is responsible for the Secret Intelligence Service and for GCHQ and the Defence Secretary is responsible for the Defence Intelligence Service. In addition, there is a ministerial committee on the security services, chaired by the Prime Minister and including the Deputy Prime Minister, the Home Secretary, the Foreign Secretary, the Defence Secretary and the Chancellor of the Exchequer. The Parliamentary Under-Secretary of State at the Foreign Office, Mr Mike O'Brien, is the junior Minister responsible for counter-terrorism issues at the Foreign Office, while the Home Secretary takes personal responsibility for terrorism policy at the Home Office. The Minister of State for the Armed Forces, Mr Adam Ingram, is responsible for intelligence and security matters at the Ministry of Defence. In addition, of course, Sir David Omand was last year appointed to the Civil Service post of security and intelligence co-ordinator in the Cabinet Office. That litany alone shows how divided the issue is and how difficulty it must be for those responsibilities to be implemented effectively.

There appears to be no senior Minister with a clear leadership role in the area. Of course I accept that the Prime Minister has overall responsibility for the work of the Government and no doubt takes a keen interest in matters related to terrorism, but it is unrealistic to expect him to supervise international co-operation in investigating and preventing terrorism on a day-to-day basis.

The Bill and the amendment are concerned with international co-operation in the fight against crime and terrorism. My concern goes much wider. My right honourable friend Mr Oliver Letwin has for some time been calling for the appointment of a single senior political figure to co-ordinate the United Kingdom's efforts in the fight against terrorism. At this time of night, it would weary the House for me to go into further detail. The House has already devoted much attention to some technical parts of the Bill. The amendment introduces a matter of principle that I hope will find favour with the Government. At this stage it is a probing amendment to elicit a response from the Government on their overall view on these matters. I beg to move.

Lord Goodhart

My Lords, on this occasion I do not support the noble Baroness. I am concerned about the constitutional implications of the amendment. As a matter of constitutional theory, the allocation of responsibilities between Ministers has always been a matter for the Prime Minister. It may well be right that there should be a single Minister with such responsibility, but I doubt whether it would be appropriate on this amendment to part from a long-established constitutional principle.

Lord Filkin

My Lords, I am grateful to the noble Lord, Lord Goodhart, for his sound reminder of the constitutional proprieties on the issue. I also have a sense of déjà vu. When I was asked in the House not long ago why we did not have one person to coordinate counter-terrorism, like Tom Ridge and the Department of Homeland Security in the US, my response, if I recollect it, was, "What a good idea, but we already have one. He is called the Home Secretary".

Although I shall go away and check, as is my wont, and burden the noble Baroness, Lady Anelay, with a further letter if I think it would benefit her, I think my answer is, in broad terms, the same. We have one senior Minister, apart from the Prime Minister, who has overall responsibility for co-ordinating the Government's efforts to counter terrorism, whether it originates abroad or is targeted at home. That person is the Home Secretary. We are all in accord with the point about the Prime Minister. While he has overall responsibilities, someone who is not so excessively burdened must have operational responsibility. From my direct experience, the Home Secretary fulfils that role clearly, strongly and powerfully.

Some other functions that contribute to counter terrorism have another ministerial lead over them. That is perfectly right and sensible and in no way weakens our efforts, as long as there is one senior, powerful Minister who is co-ordinating the Government's efforts and using the information to do our utmost to counter terrorism. That Minister is the Home Secretary. The fact that there are ministerial committees does not imply for a second that there is any division of responsibility. Any sane government have to have ministerial committees to ensure that there are proper processes to co-ordinate government activity. That is perfectly right, as long as it is clear who has the overall clout to bend the efforts of Ministers and officials to do— that in this case, it is the Home Secretary.

I shall not discuss further operational matters, although I am happy to set them out in a letter, if it would help. At operational level, we try to ensure that we are strongly connected with other European Union countries, America, and other countries throughout the world, to counter terrorism, to support them in their efforts and to benefit ourselves. We are not aware of a problem to which this amendment is a solution. That does not mean that we are complacent, or believe that we could ever have total protection against terrorism. It is a fantasy to think that this proposal, which is a repackaged version of the homeland security argumentation, has merit.

I have been robust due to the time of night, but I shall reflect on the amendment. If I can give further and better particulars, I shall be glad to write to the noble Baroness, Lady Anelay.

Baroness Anelay of St Johns

My Lords, I am grateful to the Minister for his response. This is not a repackaged homeland security measure; it goes far more broadly than that. However, I shall not argue with him on that matter.

I was grateful to the Minister for his robust defence of the Home Secretary as being the person who carries the can. I do not know whether he has the clout, but he carries the can. We are all firmly supporting him and hope that there is no can to be carried in this regard. It is a difficult job.

I was grateful to the Minister, too, for saying that he would write on operational matters with regard to the Government's contacts with other countries in relation to activities countering terrorism and the assistance that is available. I would be grateful for that letter, especially against the background of what is building up in the course of the next week or so. It would assist noble Lords who have taken part in this debate and might form a background to other debates that will be held in the next few weeks—perhaps under the Defence Secretary's rather than the Home Secretary's tutelage. I would like to take him up on the offer. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bassam of Brighton

My Lords, I beg to move that further consideration on Report be now adjourned.

Moved accordingly, and, on Question, Motion agreed to.

House adjourned at two minutes before ten o'clock.