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Serious Crime Bill [HL]

Volume 691: debated on Wednesday 9 May 2007

Read a third time.

Clause 46 [Supplemental provisions]:

1: Clause 46, page 28, line 18, at end insert—

“(5A) The Secretary of State may by order amend Schedule 3.”

The noble Baroness said: My Lords, these amendments have been retabled from the previous stage, when they were not moved. I turn briefly to Part 2 of the Bill, which deals with criminal law. I am pleased that we are all in agreement on this part of the Bill, with the exception of one minor point that is the subject of these amendments. Government Amendments Nos. 1 and 4 would allow Schedule 3 to be amended by affirmative order. As noble Lords will recall, Schedule 3 contains a list of offences that are statutory forms of incitement or other inchoate offences. They are offences that can only be encouraged or assisted with intent.

As I indicated, I originally tabled these amendments on Report. Following our discussions at that stage, and in particular following the report of the Delegated Powers and Regulatory Reform Committee on the morning of our discussions, I agreed not to move the amendments and to reflect on them. I have considered the issue carefully and have retabled the amendments as proposed on Report. The amendments are necessary and they are appropriate.

The ability for the order-making power to add an offence to the schedule is not contentious, so I will not repeat my arguments about why it is necessary. However, the ability to remove an offence from the schedule concerned a number of noble Lords and the Delegated Powers and Regulatory Reform Committee. We have taken those concerns seriously, and we have considered whether it is truly necessary to have a power to remove an offence from this schedule. We think it conceivable that there might in the future be concerns about restricting liability for offences currently in that schedule; we also think it conceivable that we might all agree that a certain offence should be removed from the schedule. Where that is the case, we think it sensible to provide a power to amend the schedule by order.

It is always possible that, in the event of there being no agreement, we would be able to debate this matter appropriately and fully. The House would be in a position to make its view known by way of an affirmative resolution, to which the House could agree or not agree, so that the resolution fails. The affirmative resolution procedure is the most appropriate way of ensuring adequate parliamentary scrutiny while maintaining flexibility. As such, I have not made any changes to the amendments that I tabled on Report. I hope that the further time given for consideration of the amendments has been helpful. It is also right to reflect on how well we have been able to arrive at consensus on these issues, and I certainly hope that we would seek to follow this model in future. I beg to move.

My Lords, I am grateful to the Minister for being prepared not to move her amendments on Report. I think that they were actually being moved by her colleague, the noble Lord, Lord Bassam, but I suspect that she offered some advice to him that it might be politic not to move them then, after we had made our objection that they had come forward at excessively short notice. We had had—for which we are grateful—the report from the Delegated Powers and Regulatory Reform Committee. The comments that the committee made at the time still stand and are worth underlining; the committee said that this was not an appropriate way of amending the schedule.

Nevertheless, the noble Baroness has given the amendments further consideration and we have had further time to look at them. We have had an assurance from the Minister that the resolution will be affirmative. So, with some reservations, we are prepared on this occasion to accept the amendments. I hope that the Minister will give an assurance that in future, first, the Government will try to give the House appropriate notice of such amendments and, secondly, that they will always take proper notice of anything that comes from the Delegated Powers and Regulatory Reform Committee. The House owes a great deal to the committee. We are very grateful for its advice, especially when it comes to us at such short notice, as it did on this occasion.

If I remember correctly—I stand to be corrected—the amendments were tabled on Monday; the committee considered them on Tuesday and produced a report that we received on Wednesday. I am grateful that on this occasion the Minister prevailed on her colleague, the noble Lord, Lord Bassam, not to press them and gave them further consideration. I should have been slightly more grateful if the amendments had not come back, but there it is; the Government have brought them back. With those misgivings, we will not oppose the amendments.

My Lords, I support what the noble Lord, Lord Henley, said. We backed him last time, when he suggested that the amendments ought not to be moved on the basis of the report of the Delegated Powers and Regulatory Reform Committee. Has any further communication taken place with the committee? We would certainly have preferred something in the Bill rather than the affirmative resolution proposed but, in the light of what the Minister said and the undertakings that she gave, we are prepared to let the provision go forward.

My Lords, I cannot assure the noble Lord, Lord Dholakia, on whether we have yet communicated with the Delegated Powers and Regulatory Reform Committee, but I join the noble Lord, Lord Henley, in congratulating the committee on its excellent work. Noble Lords will know that we always take very seriously all its recommendations and give them proper consideration. I also thank noble Lords opposite for the way in which they have responded to the efforts that we have made to reach consensus. They will know that we wanted to take very seriously the various comments made on this part to see whether the Bill could be improved in this House before it goes to the other place. We wanted to reach consensus, which was partly why the amendments came late. We gave good consideration to what was said and sought to meet the needs outlined.

I happily assure the noble Lord, Lord Henley, that we will make every effort to give appropriate notice and respond. On behalf of my noble friend Lord Bassam, who is not his place today because, regrettably, he is attending a funeral, I should say that he was very happy for me to give way. He has shown eminent good sense throughout consideration of this Bill and I would not want it thought that he was in any way a source of intransigence. I have found him a source of great wisdom, comfort and support.

I am grateful to the noble Lord. We think that the affirmative procedure is appropriate. It will give this House and another place a clear opportunity to express their view, and that view will be decisive.

On Question, amendment agreed to.

2: After Clause 65, insert the following new Clause—

“Role of Information Commissioner

(1) Section 51 of the Data Protection Act 1998 (c. 29) (general duties of the Commissioner) is amended as follows.

(2) In subsection (7), at the beginning insert “Subject to subsection (7A),”

(3) After subsection (7), insert—

“(7A) The Information Commissioner may, on his own initiative, assess any data processing conducted under sections 63 to 67 of the Serious Crime Act 2007.””

The noble Baroness said: My Lords, the objective of the amendment is to give the Information Commissioner the power to initiate assessments of his own volition. He would not have to wait to be invited to do so by the Audit Commission. We consider it to be an important amendment that would ensure that there was more effective and appropriate supervision of the new data exchange that will occur as a result of the Bill.

I tabled this amendment for the first time on Report. I brought it back today at Third Reading in order to give the Government the opportunity to explain to the House what progress they have made with the commitment given by the Minister’s colleague in another place, Mr Vernon Coaker, that he would take away the amendment and look at it. The offer was made at the meeting held last month with the Information Commissioner, Mr Richard Thomas. I attended that meeting, as did my noble friend Lord Lucas, who I see is in his place.

The Minister said on 30 April:

“However, for the record, this issue is being looked at. Whether it will be ready by the time the Bill leaves this House is another matter”.—[Official Report, 30/4/07; col. 878.]

What progress has been made on the matter? I note that in the period between Report and Third Reading today the Information Commissioner has given evidence to the Home Affairs Select Committee of another place. In that submission, he recommended that all public sector bodies should follow a new code of practice on how they pool information. Mr Thomas also argued that his powers should be increased to inspect and audit organisations without their consent when they are suspected of breaching privacy laws. That exactly mirrors the intent behind my amendment today.

In his evidence to the Select Committee, Mr Thomas stated:

“The Home Office have accepted in principle that we should have the power to go in and inspect”.

That was a welcome announcement. It goes beyond the indication given by Mr Coaker that, in the Minister’s words, he would take away the issue and look at it. I hope that we will have a firmer commitment from the Minister today to reflect the evidence given by Mr Thomas. I beg to move.

My Lords, I support the amendment. My noble friend has already alluded to the fact that the Information Commissioner has gone public on the matter. In that context, I would be grateful if the Minister could confirm one small point for me. I have it in mind that the Information Commissioner is the only regulator in the UK who does not have the statutory authority to intervene in the way that the amendment proposes. I may be wrong, but if not it seems ludicrous that he should be the only one so constrained. Perhaps the noble Baroness could clarify the matter.

My Lords, I thank the noble Baroness for retabling her amendment, because this is an issue that we discussed in detail last time. As she says, her amendment would grant the Information Commissioner the power on his own initiative to assess any data processing conducted under Clauses 61 to 65 of the Bill. I must resist the amendment but, before I do, I would like to explain why and consider the substance of the amendment. In particular, I wish to look at whether the Information Commissioner already has powers to initiate such issues, which is another matter that has concerned us.

I say to the noble Baroness, Lady Anelay, and to the noble Earl that, as I understand it, the Information Commissioner’s comments referred to the code of practice amendment and to his access, not to his access to inspect and audit. That was the issue to which he was referring.

Let me explain why we take the position that we do. First, where the amendment refers to Clause 65, I understand that it is meant to apply to Clauses 63 to 67 of the Bill as amended on Report, and I will proceed on that basis. I start by reiterating that the Data Protection Act already provides the Information Commissioner with the power to assess data processing of his own volition. Under Section 43 of the Data Protection Act, the Information Commissioner can, on his own initiative, serve the data controller of a body or organisation with an information notice requiring the production of information for the purposes of determining whether the data controller has complied or is complying with data protection principles. Any body or organisation dealing with or processing personal information must be registered as a data controller with the Information Commissioner. That includes all bodies using the powers under Clauses 63 to 67.

In addition, Section 40 of the Data Protection Act provides the Information Commissioner with the power to serve enforcement notices of his own volition if he is satisfied that a data controller has contravened or is contravening the data protection principles. The issue of these notices enables him to rectify instances of non-compliance with any of the data protection principles. Failure to comply with an enforcement notice or an information notice is an offence under Section 47 of the Act. A person guilty of an offence on summary conviction is liable to a fine not exceeding the statutory maximum and, on indictment, to an unlimited fine. In any event, it is not in the data controllers’ interests to refuse access if they wish to satisfy the commissioner that their activities comply with the Act. We therefore believe that adequate powers are already provided to the Information Commissioner in that regard without further provision.

I understand that the Audit Commission has already made a standing offer to the Information Commissioner to assess the data processing that it undertakes in carrying out the national fraud initiative, particularly with regard to the security arrangements that are in place. I further understand that the Audit Commission and the Information Commissioner meet regularly to discuss good practice with regard to data matching and data processing generally. The practical reality is that the two bodies have a constructive relationship, which is likely to continue.

With regard to the code of practice for all those using the data-sharing powers of the Bill, I stated on Report that the Government hoped to return to the House with a more definite indication of our plans. I can now give an assurance that the Government will introduce an amendment to that effect; that is, introducing a code of practice, the detail of which will be discussed in another place. That is the issue that the Information Commissioner was most exercised about.

The Audit Commission’s national fraud initiative code of data matching practice contains a provision that under Section 51(7) of the Data Protection Act specifically invites the Information Commissioner to assess the national fraud initiative’s compliance with that Act. The provision also recommends that all bodies supplying the data for data-matching exercises should similarly consent to reasonable requests made by the Information Commissioner to assess their processing of personal data. It is envisaged that the code of practice for the disclosure of information to prevent fraud will contain a similar provision.

In summary, we believe that the Information Commissioner has at his disposal all the necessary powers to ensure that the data sharing and data matching carried out using the powers in the Serious Crime Bill comply with the Data Protection Act. For those reasons, the Government believe that the amendment is unnecessary. I am grateful to the noble Baroness and the Information Commissioner, however, for giving us the opportunity to look again at the powers to initiate, just to clarify whether the Data Protection Act is in fact able to deliver what was required. We believe that the powers that are already there will satisfy on that account.

As I have indicated, it gives me some pleasure to be able to say with regard to the issue of the code, a matter that was exercising more attention, that we will be able to satisfy this House in due course, but that this matter will be raised, and, I hope, dealt with well, in the other place when the Bill leaves this House—if, of course, your Lordships agree that it should do so.

My Lords, I am grateful to the Minister. She is right to point out the defect in the amendment; it should refer to Clauses 63 to 67, reflecting the Bill as amended on Report. There is always a danger in simply retabling an amendment from Report to give the Government the opportunity to respond when one knows that one is not going to press it and one perhaps is not quite as careful as one ought to be.

The Minister is saying that, after further reflection, the Government consider that they do not have to do anything about this because the powers already exist. She is also saying that the Government maintain that the Information Commissioner’s main concern was about the existence of a code of practice to be referred to in the Bill and the procedure that should follow from that. I have no doubt that my noble friend Lord Northesk may have something to say on that when we come to Amendment No. 3.

The Minister is right to point out that this House will have the opportunity—when and if the Bill returns from another place—to consider any amendment tabled by the Government about the code of practice. However, we are narrowly bound by this House’s rules on its consideration of Commons amendments. I suspect that we will still have an appropriate opportunity, even within those close rules, to properly scrutinise that amendment.

The Minister also says that the Audit Commission has given a standing offer to the Information Commissioner to come in and make assessments when appropriate. That is welcome; it is the right way for a body such as the Audit Commission to operate. The Audit Commission has always been impressive in the way in which it carries out its work—certainly in the past few years in which I have been observing it. However, that is not the same as giving a statutory guarantee to the Information Commissioner, which is what we had thought, in our meeting with him, that he was minded to seek.

We are now in the position where our colleagues in another place will have further opportunity to pursue this matter and to see whether the Information Commissioner’s views have moved since our meeting, given that the Government are bringing forward a code of practice amendment in the Commons. That might have had an influence on him; we cannot tell while standing at the Dispatch Box today. However, my right honourable and honourable friends in another place will no doubt pursue that diligently. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

3: After Clause 66, insert the following new Clause—

“Functions of Secretary of State: sharing of information

(1) The Secretary of State has the following specific functions in respect of the sharing of information to which this section applies—

(a) to draw up and disseminate to the public bodies and other organisations to whom this section applies guidance as to the sharing of information between and amongst themselves;(b) to draw up and disseminate to the public bodies and other organisations to whom this section applies guidance as to the circumstances in which it is appropriate for those organisations to share information between and amongst themselves;(c) to maintain under review the guidance set out in paragraphs (a) and (b).(2) In drawing up the guidance under subsection (1)(a) and (b), and in reviewing such guidance under subsection (1)(c), the Secretary of State shall consult the Information Commissioner.

(3) This section applies to public authorities and any anti-fraud organisations specified under section 63 and any agencies, companies or individuals who may be contracted to work for them or to supply goods and services to them.

(4) The information for which provision is made under this section is information shared under the provisions of this Act.

(5) The Secretary of State may, by regulations subject to affirmative resolution of each House of Parliament, proscribe and penalise contravention of any guidance under this section as to the collection, sharing, use, holding and disclosure of information.”

The noble Earl said: My Lords, I do not intend to detain your Lordships for long. We all know where we wish to get to with this matter. Indeed, I—and, I suspect, my noble friend Lady Anelay—welcomed the Minister’s magnanimous assurances on Report. Your Lordships will recall that the Minister intimated that she might be able to give a more definite indication of the Government’s intentions today; she repeated that earlier. Accordingly, as with the previous amendment, my purpose was to give an opportunity to the Minister to advise the House of progress being made. She has already dealt with that in the main while speaking to the previous amendment. Nevertheless, I would be grateful if she would put, if possible, a little more flesh on the bones of the Government’s thinking.

I would have preferred to have resolved this matter before sending the Bill to another place. However, as the Minister said on Report, there may be something to be said for giving it,

“a little something to do”.—[Official Report, 30/4/07; col. 880.]

I beg to move.

My Lords, I support my noble friend. However, I also point out that the Minister said on Report that even if she could not bring forward an amendment, she would try to flesh out the Government’s plans and hoped to return with a more definite indication of them. The indication has been that there will be an amendment about the code of practice. While understanding that that amendment will not have been drafted yet, my noble friend and I seek a little more guidance for the House, if available, on what that code of practice will involve.

My Lords, I thank the noble Baroness, Lady Anelay, and the noble Earl, Lord Northesk, for bringing this back. The amendment would give an outline of what the guidance should cover and who should be consulted on its production. The amendment also provides that:

“The Secretary of State may, by regulations subject to affirmative resolution of each House of Parliament, proscribe and penalise contravention of”,

this guidance. I understand—and indeed the noble Baroness and noble Lord will know—that I would like to assist in putting much more flesh on the bones. However, I have a little difficulty doing that today.

On Report, the noble Baroness once again undertook to raise the statutory code of practice to give me the opportunity of making a very firm commitment, and I was delighted to be able to give her that assurance. Because of the way in which the noble Earl, Lord Northesk, the noble Baroness and we have worked together in the past, I hope that they will accept that if I were in a position to give chapter and verse, I would be the first to do so here. But we are not quite at that stage yet. The Government will bring forward the amendment in the other place which will introduce the duty to produce and have regard to a code of practice. The detail is being discussed widely; these are matters which we believe we need to consider further. However, I reassure your Lordships that we have been working very closely with the former Department for Constitutional Affairs—now the Ministry of Justice—and will liaise with the Information Commissioner on the detail of the amendment, as the Minister in the other place, my honourable friend Vernon Coaker, undertook to do at the meeting with the Information Commissioner on 18 April.

I hope that noble Lords opposite will also accept that we will try to keep noble Lords and opposition partners in as close contact about that development as possible. My honourable friend and I have both indicated that we wish to work on a very collaborative basis on these issues. I do not anticipate that there is likely to be a great deal of contention in this area; rather, I anticipate that consensus and information are likely to prevail.

We recognise the concerns that have been raised by noble Lords and by the Joint Committee on Human Rights on the need for safeguards to apply to these provisions. We are drafting the new amendments with their comments and helpful suggestions very much in mind. I have not been able to be as helpful as I would ideally have liked to be in the short time we have, but I hope, given that undertaking, that the noble Earl, Lord Northesk, will feel able to withdraw the amendment. I will do all I can in the interim to make sure that noble Lords are kept in touch with those developments, as may be proper.

My Lords, I am most grateful to the noble Baroness for that response. Inevitably—and I suspected as much—it will simply be a case of “wait and see”. My noble friend Lady Anelay referred to some of the constraints of dealing with this matter under consideration of Commons amendments. No matter—I think the direction of travel is the same for all of us. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 79 [Orders of the Secretary of State and the Scottish Ministers]:

4: Clause 79, page 43, line 26, after “5(4),” insert “46(5A),”

On Question, amendment agreed to.

Schedule 8 [Abolition of Assets Recovery Agency and its Director]:

5: Schedule 8, page 93, line 16, leave out from beginning to “, in” and insert—

“(1) Section 316 (general interpretation: Part 5) is amended as follows.

(2) In subsection (1)”

The noble Baroness said: My Lords, I shall speak to Amendment No. 7 as well. The amendments further modify the amendment the Bill will make to the civil recovery provisions in the Proceeds of Crime Act 2002. The Assets Recovery Agency is currently the only enforcement authority for these purposes. As noble Lords are aware, its functions are being transferred to the Serious Organised Crime Agency.

In England, Wales and Northern Ireland, the main prosecution agencies will also have access to the civil recovery powers. Accordingly, there will now be more than one enforcement agency with the ability to pursue civil recovery.

Part 5 of the Proceeds of Crime Act is drafted on the basis that there will be one body pursuing civil recovery proceedings, as this was previously the case with the Assets Recovery Agency. As there will now be multiple enforcement authorities in England, Wales and Northern Ireland, clarification is required to make certain that references to “enforcement authority” in the legislation are read in a common-sense manner. Amendment No. 7 seeks to achieve that. Amendment No. 5 paves the way for that amendment. I beg to move.

On Question, amendment agreed to.

6: Schedule 8, page 93, line 24, after “SOCA” insert “, the Director of the Serious Fraud Office”

The noble Baroness said: My Lords, the amendments relate to enforcement authorities for the civil recovery of the proceeds of crime in Northern Ireland. They are further amendments to those already made to the Proceeds of Crime Act 2002. Under the Bill at present, the relevant enforcement authorities in Northern Ireland are the Serious Organised Crime Agency and the Director of Public Prosecutions for Northern Ireland. These amendments add the director of the Serious Fraud Office as an enforcement authority in civil recovery for Northern Ireland.

Amendment No. 6 confers functions in respect of civil recovery in Northern Ireland on the director of the Serious Fraud Office. Amendment No. 9 is a consequential amendment to the Limitation (Northern Ireland) Order 1989, so that the Serious Fraud Office will be bound by the 12-year limitation rule within which proceedings for a civil recovery order must be brought. I beg to move.

My Lords, we support the amendment. First notice of it was received by e-mail last Friday afternoon. It reflects the fact that the Government were trying to put as many of the tidying-up amendments in the Bill before it left this House for another place. I alerted members of our Northern Ireland team in this House. They liaised with my honourable friend Mr Lidington. I am grateful to them for looking at this. Throughout, we have sought to ensure that our Commons and Lords team on Northern Ireland is involved where relevant. Its response was simply that, if the Government did no more than take account of the SFO’s remit in Northern Ireland, we would not have any objection to that matter. If that is the case, as the noble Baroness has assented to today, this would not need to be contested when it reaches the Commons.

My Lords, I am most grateful for the noble Baroness’s indication. I am grateful for the hard work that the Northern Ireland team has undertaken generally, but in particular in relation to this issue. I convey my genuine thanks to it.

On Question, amendment agreed to.

7: Schedule 8, page 93, line 26, at end insert—

“(3) After subsection (8) insert—

“(8A) In relation to an order in England and Wales or Northern Ireland which is a recovery order, a property freezing order, an interim receiving order or an order under section 276, references to the enforcement authority are, unless the context otherwise requires, references to the enforcement authority which is seeking, or (as the case may be) has obtained, the order.””

On Question, amendment agreed to.

8: Schedule 8, page 100, line 13, after ““the” insert “Director General of the”

The noble Baroness said: My Lords, these are additional amendments to the information gateways provisions which are required due to the amendments being made to the Proceeds of Crime Act 2002.

The Bill provides that it is the director-general of the Serious Organised Crime Agency who is a permitted person able to disclose information to the Lord Advocate and Scottish Ministers for their various functions under the Proceeds of Crime Act. But the Bill has conferred different functions on SOCA generally and not specifically on the director-general. Amendment No. 8 amends the Proceeds of Crime Act 2002 to reflect this.

Amendment No. 12 repeals a provision which the Commissioners for Revenue and Customs Act 2005 added to Section 436 of the Proceeds of Crime Act. As that provision is to be repealed by the Bill consequent on the abolition of the Assets Recovery Agency, the provision in the 2005 Act needs to be repealed as well. I beg to move.

On Question, amendment agreed to.

9: Schedule 8, page 103, line 20, after “Agency,” insert—

“(ab) the Director of the Serious Fraud Office,”

On Question, amendment agreed to.

10: Schedule 8, page 106, line 33, after “Agency)” insert “—

(a) ”

The noble Baroness said: My Lords, part 5 of Schedule 8 transfers the accreditation and training functions of the Assets Recovery Agency to the National Policing Improvement Agency.  In consequence of this transfer, certain amendments are made to the Police and Justice Act 2006 by paragraph 161 of Schedule 8.

Paragraph 161(2) adds a new sub-paragraph (ea) to paragraph 1 of Schedule 1 to the 2006 Act, referring to the National Policing Improvement Agency’s accreditation and training functions under Section 3 of the Proceeds of Crime Act 2002.  Under the 2006 Act, one of the objects of the National Policing Improvement Agency is the doing of all such other things as are incidental or conducive to the attainment of any of its other listed objects. At present this excludes the object of the accreditation and training of financial investigators. The purpose of this amendment is to provide that the accreditation and training of financial investigators is included. I beg to move.

My Lords, I put on record how grateful I am to the noble Baroness for agreeing to give a full explanation of the technical amendments that the Government have put forward, not only in this group but in previous groups. When a Bill comes from another place and technical amendments are added here, it is not necessary to invite the Minister to explain. However, when a Bill starts in this place, we like to ensure that there is an explanation on the record, not simply for our colleagues in another place, who will have the benefit of seeing copies of letters from the Home Office to us on these Benches, but for those outwith this House who must not only seek to make representations when the Bill reaches another place, but who will have the duty of implementing the proposals within it. We support the amendments.

My Lords, I thank the noble Baroness. She will know that I am always reluctant to speak more in this House than is absolutely necessary, not least because I fear that the House will tire of me all too soon. But on this occasion, I was most happy to explain the amendments in order to assist.

On Question, amendment agreed to.

11: Schedule 8, page 106, line 36, at end insert “; and

(b) in paragraph (f) for “(e)” substitute “(ea)””

On Question, amendment agreed to.

Schedule 15 [Repeals and revocations]:

12: Schedule 15, page 127, line 27, column 2, at end insert—

“Paragraph 98 of Schedule 4.”

On Question, amendment agreed to.

An amendment (privilege) was made.

My Lords, I beg to move that this Bill do now pass. In doing so, I thank all noble Lords who have participated in the Bill and worked so diligently to ensure that it goes to the other place in a heartened and improved form.

Moved, that the Bill do now pass.—(Baroness Scotland of Asthal.)

On Question, Bill passed, and sent to the Commons.