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Serious Organised Crime Agency

Volume 483: debated on Tuesday 25 November 2008

I thank you, Mrs. Winterton, for the opportunity to discuss the information-sharing gateways of the Serious Organised Crime Agency and, in particular, the rights that attach to it following the transfer of some of the functions of the Assets Recovery Agency, which was wound up in April.

A wider debate on the general performance information available on SOCA and the ability of the House to scrutinise its activities effectively will be necessary at some point. There was a suggestion that the Select Committee on Home Affairs would conduct an inquiry into SOCA, but that has not yet come to fruition. My general concerns are the opaqueness of SOCA’s activities and the assessment of its performance, but such a wider debate is for another day, and for the whole House because of its seriousness, and I do not intend to stray into it in this debate. Rather, I have an opportunity to discuss the narrower, more technical matter of the information-sharing requirements that were placed on SOCA following the transfer of powers from the ARA earlier this year.

At the outset, I thank the Minister for the constructive way in which he has sought to address some of the points that I will discuss. I am grateful for the steps that he has sought to take, although, unfortunately, it has proved necessary to introduce an Adjournment debate properly to explore the things that need to be considered.

On 11 January 2007, the then Home Secretary announced the transfer of the asset recovery functions of the ARA to SOCA, with the training functions going to the National Policing Improvement Agency, with effect from 1 April 2008. That announcement preceded a highly critical report of the performance of the ARA by the National Audit Office in February 2007. The report made a number of recommendations on the functions of the ARA that the NAO said would be applicable to the successor bodies that took over its functions. The report included significant criticism of the case management database, which the NAO described as “poor”. The NAO stated:

“We had great difficulty in compiling a comprehensive list of cases and tracking their value and progress”.

The NAO said that the ARA had collected £23 million against cumulative costs of £65 million.

As I have said, the transfer of the asset recovery functions of the ARA to SOCA was effective on 1 April 2008. The measure was implemented by the Serious Crime Act 2007. In conducting its work, the ARA used information gateways for information that was disclosed to it by partner agencies to enable it to conduct its duties and to fulfil its responsibilities, and there were gateways that authorised the ARA to disclose specified information that it had obtained to certain other agencies.

The transfer of those powers was not addressed directly in the 2007 Act. Nearly two months after the transfer of the functions, the Government introduced secondary legislation to address the gap. Those measures—the draft Serious Organised Crime and Police Act 2005 (Disclosure of Information by SOCA) Order 2008, and the draft Proceeds of Crime Act 2002 (Disclosure of Information) Order 2008—were considered in Committee on 24 June 2008. The explanatory notes to those orders stated:

“It is the policy that those undertaking civil recovery functions shall have the same provisions applying to them as…ARA”.

That point was reaffirmed in the other place when their lordships considered the orders. Lord West stated:

“The orders merely ensure that organisations which inherited the Assets Recovery Agency’s work and functions can access the same information sources that were available to the agency and can disclose the same information onwards.”—[Official Report, House of Lords, 17 June 2008; Vol. 702, c. GC371.]

In Committee on 24 June, the point was reiterated by the Minister, who said:

“So, the orders ensure that SOCA and others that inherit the civil recovery functions have the same information gateways as were available to the Assets Recovery Agency. There is no change in policy. The orders are not giving SOCA or any other agency powers or functions that were not previously available to the Assets Recovery Agency.”––[Official Report, Fifth Delegated Legislation Committee, 24 June 2008; c. 4.]

During the consideration of the two orders, I highlighted the fact that one of the orders went beyond the rights that had been enjoyed by the ARA. The inbound order—it permitted information to be disclosed to SOCA—was limited to conducting asset recovery functions. However, the general outbound disclosure provision, meaning the provision on disclosure by SOCA to certain specified third parties, was not limited specifically to asset recovery functions, but applied generally to SOCA functions. I made that point in Committee and the Minister kindly said that he would look at the matter, as he has done previously when technical problems have been highlighted, and investigate whether the explanatory notes or statements on the statutory order were correct.

On my review and interpretation of the orders, there was an extension, and the approach was wider than asset recovery functions. The Minister e-mailed me 16 July 2008:

“The intention when the Assets Recovery Agency…was abolished and certain of its functions were inherited by SOCA was that SOCA should also inherit the same powers, including powers to disclose information. The Order’s operation goes beyond the narrow policy intention.”

He added:

“I do not want SOCA to lose an information sharing provision unless there are reasonable counter-arguments. I am therefore content for the gateway provisions to have their broad application, although I accept that this goes beyond the original stated policy intention.”

I countered by saying that although I understood the Minister’s points, I felt that our considerations, including statements and explanatory notes, did not adequately set out what the provisions actually achieved. I felt that the House should have that corrected and that a restatement should be made. The Minister made some reasonable points on whether SOCA should have general information gateways to disclose certain pieces of information on prevention of harm and financial crimes to other agencies to investigate, but I wanted people to have the opportunity to decide whether that was appropriate.

The point is that the situation was not as was stated. I therefore replied to the Minister on 22 July pointing out that that approach was not the way forward, that further consideration was appropriate and that one of the orders appeared to limit and restrict rights to asset recovery whereas the other did not. The Minister kindly took on board my points and said that he would revoke the order. He commented:

“These gateways, I am sure you will agree, are important for the fight against serious organised crime. In order to address your concerns we shall be laying a new Order revoking the existing one so as to allow for a full explanation and debate on the effect of the statutory instrument.”

The Minister, whom I entirely respect, was true to his word and tried to do that, so that we could have the debate. However, having tried to go down that route he was, I believe, advised—as I am sure that he will explain to the House today—that unfortunately, for various technical and procedural reasons, it was not possible to do so, and that the best means of debating the issue and putting it on record and correcting in some ways what had been said before was an Adjournment debate. That is why I am using the House’s time to correct some of what has been said and to achieve clarity. I do not believe that there was an intention to give a false impression or not to state the ambit and operation of the orders correctly. However, as a consequence of the statements and explanatory notes, an impression may have been given—I believe it was given—that the outbound order was more limited than it was.

The issues that we are debating are technical and procedural. It is important that SOCA should have the right powers to do its job effectively. Will the Minister explain how he believes the extension in question will help it with its activities, through the information gateway that the two orders provide? How has the power been used to date? Prior to June it did not exist. The Minister explained to me in a further letter of 6 October 2008 that

“SOCA did not specifically request an extension of their general gateways to cover onward disclosure in respect of protecting public health and the functions of the Financial Services Authority under the Financial Services and Markets Act 2000.”

However, he said that he believed that it would be

“inconsistent...to have different...gateways for different purposes”,

albeit that, as I have said, the inbound information gateway has that slight distinction.

Before I finish, there are a few more general points, one of which concerns the measurement of performance. During consideration by the Public Accounts Committee of the National Audit Office report, on 7 March 2007, the hon. Member for Tooting (Mr. Khan) now the Under-Secretary of State for Communities and Local Government, asked the Comptroller and Auditor General:

“Can you reassure us that when your unit”—

the ARA—

“is merged with SOCA and the other units, we will still be able to assess for example whether the costs spent on this unit exceed or is less than the assets recovered? Will we still be able to do that exercise?”

He followed that up with:

“One of the criteria of the PAC, and I know it is a crude one, to assess value for money is whether the cost spent exceeds the amount of assets recovered. When this unit merges, will you still be able to do that task?”

Sir John Bourn, the Comptroller and Auditor General, answered:

“Yes. It should have a proper system of management accounts which will provide that information and we shall see that it does have.”

I have recently received a parliamentary answer from the Under-Secretary of State for the Home Department, the hon. Member for Tynemouth (Mr. Campbell):

“Information on the application of civil recovery and taxation powers under the Proceeds of Crime Act 2002 will be published by the Serious Organised Crime Agency as part of its annual report. The presentation of this data will be aligned with SOCA’s reporting on its existing asset recovery powers and as such will not make use of older formats. SOCA has not inherited all of the Asset Recovery Agency’s asset recovery powers and, unlike ARA, SOCA will not be the sole agency exercising civil recovery powers. Any like-for-like comparisons with ARA’s past achievements will therefore be inhibited.”—[Official Report, 10 November 2008; Vol. 482, c. 810W.]

I take what is said in that answer, but the question remains whether there will be a level of transparency that allows an assessment of costs recovered and spent.

The National Audit Office raised certain recommendations, as I said previously, with recommendation (b) requiring that the case management system be developed. The NAO commented:

“Once this is established, the Agency should use the data collected to help inform case selection and prioritisation and to review its performance measurement regime so that it incorporates targets that are measurable, challenging and achievable, such as reducing the cost and time per case.”

A further parliamentary answer from the Under-Secretary confirmed:

“SOCA has implemented Recommendations (a) to (d) of the NAO report.”

On recommendation (b) he added:

“SOCA has case management systems in place which contain all relevant management information.”—[Official Report, 10 November 2008; Vol. 482, c. 811W.]

My question to the Minister today is not simply whether the case management is in place, but equally whether what are described as “measurable, challenging and achievable” performance measurements are equally in place and will be published so that there can be appropriate scrutiny.

A general issue of disclosure arises. I have covered some quite narrow issues in relation to the disclosure gateways, but I note from a statement yesterday from the Ministry of Justice that that Department proposes to

“confer a power upon the Secretary of State to permit or require the sharing of personal information between particular specified persons, where a robust case for doing so exists.”—[Official Report, 24 November 2008; Vol. 483, c. 39WS.]

On my reading, that announcement would appear to apply a very general and broad-brush approach to data sharing. Will the Minister clarify whether he has had any discussions with his colleagues in the Ministry of Justice about the application of what appear to be quite wide-ranging powers to SOCA or any other agencies, given that data sharing needs to be tightly defined for specific purposes?

I am most grateful to my hon. Friend the Member for Hornchurch (James Brokenshire) for giving me a minute or two on SOCA. The question in his excellent speech was the release of information, but my concern is that there is no information to release in many cases.

In answer to a question that I tabled, the Minister said:

“The Home Secretary’s priorities for SOCA in its first year included that SOCA should devote a higher proportion of its resources and activity to intelligence work than the agencies that it replaced and that Class A drugs and organised immigration crime, in that order, should be its top priorities. Organised immigration crime covers both the organised facilitation of immigrants to the UK (people smuggling) and trafficking of people for criminal exploitation, for example prostitutes or forced labour (human trafficking).”—[Official Report, 1 October 2007; Vol. 463, c. 2359W.]

Its involvement in information gathering and sharing was included in the annual report 2006-07.

In spite of that commitment, SOCA’s most recent report includes no mention of trafficking and no information about how many children are trafficked into the UK—dealing with that was one of SOCA’s original jobs. There are no statistics on human trafficking, and according to another parliamentary answer from the Minister, there is no intention to produce any more information. As for the number of trafficked victims found tending cannabis:

“Crown Prosecution Service (CPS) records do not hold information about the location in which an offence was committed.”—[Official Report, 7 February 2008; Vol. 471, c. 1372W.]

On the numbers of victims of internal human trafficking, the answer was:

“Data on trafficking victims are not yet recorded centrally.”—[Official Report, 10 June 2008; Vol. 477, c. 197W.]

In answer to the question how many children have been charged with cannabis cultivation, the response was:

“Charging data are not collected centrally”. —[Official Report, 17 June 2008; Vol. 477, c. 831W.]

It is not just a question of how to release the information, as my hon. Friend has rightly asked. Another problem is that SOCA does not have the information. Not only does it not have the information, but it has tried to bypass that fact by arguing that the UK Human Trafficking Centre in Sheffield is responsible for such matters. The Human Trafficking Centre does not have the information either, although £1.75 million will be spent this year trying to find it.

My argument is simple. I believe that SOCA has only 12 staff—it is a tiny organisation. However, if it has more staff than that, why can it not obtain the information that my hon. Friend wants, or the information that I want on human trafficking?

It is a delight to serve under your chairmanship, Mrs. Winterton, for what may be the first time. I thank the hon. Member for Hornchurch (James Brokenshire) for how he has worked with me to find a way through the matter. That shows that sometimes, when an issue arises through no particular fault, it is possible to work together to resolve it. I welcome this Adjournment debate as an opportunity to read some things into the record that I hope will be helpful to him. I thank him for his thanks to me and for his co-operation.

My right hon. Friend the Member for Leicester, East (Keith Vaz), the Chair of the Select Committee on Home Affairs, is here. I believe that the chair and the director general of SOCA have given evidence before the Committee. The hon. Member for Hornchurch asked whether they had been to the Committee, and I understand that they have.

I confirm that the chair and chief executive have been before the Select Committee. We will be calling them back to consider the issues.

That is an extremely helpful clarification. I am grateful to my right hon. Friend for making that point.

I shall make a couple of points in the few minutes available to me on the specific questions that have been raised. Notwithstanding the monetary issues that we can set against each other in determining whether the ARA did one thing or another, the importance of what it did—as well as the importance of much of the work on proceeds of crime going on in other agencies and within police forces—is that the business is new. It is an area of work that did not exist before, and in many respects, it is trailblazing. We all want it to be more successful, because we are sick of criminals gaining from their criminality, and we must therefore do more. There are many issues involved, not least of which is that many cases get stuck because of difficulties in court, which we are trying to resolve. However, important trailblazing is taking place.

The hon. Member for Hornchurch made a point about transparency, which is important and which we need to ensure. The hon. Member for Totnes (Mr. Steen) spoke about trafficking. If he is saying that he has been trying unsuccessfully to get the information and that it was not included in the annual report, I will take up the matter with SOCA to see whether I can get any additional information that might be helpful to him. I will copy the reply to you, Mrs. Winterton, to the hon. Members for Hornchurch and for Totnes and to the Chairman of the Home Affairs Committee.

I have had no discussions with the Ministry of Justice on the issue raised by the hon. Member for Totnes—frankly, I do not know what aspect of Ministry of Justice business he was referring to—but that would be subject, as always, to the Data Protection Act 1998, human rights legislation and so on. However, I have had no particular contact about that.

The Serious Organised Crime and Police Act 2005 (Disclosure of Information by SOCA) Order 2008 was introduced consequentially to the abolition of the ARA and its director. It ensured that SOCA, which took over some of the ARA’s functions under the Proceeds of Crime Act 2002, could disclose information in its possession to named bodies for the same purposes as the ARA. However, as the hon. Member for Hornchurch has highlighted, it goes further than that.

The order was subject to the affirmative procedure and was debated by the Fifth Delegated Legislation Committee on 24 June. The hon. Member for Hornchurch correctly identified during that debate that the additional provisions for the onward disclosure of information would apply to all SOCA’s functions—in other words, they were not limited to those inherited from the ARA under the amendments to the Proceeds of Crime Act 2002. As a believer in parliamentary scrutiny, I am grateful to him for discovering that, for securing that information and for bringing it before Parliament. It is an important demonstration of how the process can work, and he should be commended.

I accept that the matter was not explored fully in earlier parliamentary consideration, for which I apologise. The order was presented as providing the ability to disclose information obtained by SOCA in connection with the functions transferred from the ARA. However, during the debate, I accepted the point that the order also applies to information obtained by SOCA in connection with the exercise of any of its existing functions under sections 2 and 3 of the Serious Organised Crime and Police Act 2005, namely other matters relating to serious organised crime and information relating to crime. Accordingly, information that came into SOCA’s possession in the exercise of any of its functions can be disclosed onwards under the new provisions created by the order.

Hansard records that I agreed with the point made by the hon. Member for Hornchurch. It is on public record that I explained the full effects:

“it is not our intention to mislead the Committee on the transfer of powers to SOCA in the second order. We have extended the disclosure powers of SOCA and the directors because they have taken over powers from the ARA. The powers of SOCA will not be limited to its asset recovery functions.”—[Official Report, Fifth Standing Committee on Delegated Legislation, 24 June 2008; c. 9.]

The order adds to the designated functions for which SOCA may make a disclosure under section 33 of the Serious Organised Crime and Police Act 2005, namely for the purposes of protecting public health and for the functions of the Financial Services Authority. The hon. Member for Hornchurch asked me to clarify whether SOCA had asked for the power. To put it on record, the answer is no, but we were advised by our lawyers that we needed to ensure that SOCA had the power, which is why we introduced the order.

In subsequent correspondence with the hon. Member for Hornchurch, I offered to withdraw the order and lay another in similar terms. On further consideration, I was advised that that would not have been an appropriate use of the Committee’s valuable time, as the drafting and effect of any new order would be exactly the same as the one already made. However, I welcome the opportunity that he has provided to explain some of the effects of the order.

In my view, it is sensible and appropriate that SOCA’s disclosure of information powers should be consistent for all its functions. My officials have been in contact with SOCA and, although SOCA did not proactively request the additional purposes for which information can be disclosed, it agrees that its powers to disclose should be consistent across all the information that it holds, however that information came into its possession. That is a small further development in the tools available to fight crime.

Although SOCA did not request the additional power, if we are to put it on the same footing as the ARA for disclosing information that came into its possession in the exercise of powers under the Proceeds of Crime Act 2002, it is sensible to apply that to all its information. SOCA has also confirmed on a practical level that it would be difficult, perhaps impossible, to identify and separate which of its information was obtained under its functions under the Proceeds of Crime Act 2002 and which was obtained under its other functions. The free flow of information within SOCA makes it difficult to trace the original source, and to separate and handle information differently would impair the internal workings and operation of SOCA.

The order is sensible, proportionate and necessary. I apologise to you, Mrs. Winterton, and to the hon. Member for Hornchurch that it was not as accurate as it should have been when we first discussed it. I hope that this debate has gone some way towards putting on record what should have been said in the original Committee. I will do what I have said on finding out information for the hon. Member for Totnes. I also hope that the hon. Member for Hornchurch is satisfied.