My Lords, I beg to move that the Commons amendments be now considered.
Moved accordingly, and, on Question, Motion agreed to.
[The page and line references are to Bill 103 as first printed for the Commons.]
1: Leave out Clause 4
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 1.
As noble Lords will know, this will be the first time that I stand before the House to discuss this Bill. I understand from the Attorney-General, my noble and learned friend Lady Scotland, and colleagues in the other place that the Bill has undergone very careful consideration throughout its passage. I thank all of your Lordships for your time, attention and close scrutiny to date and I look forward to our consideration this afternoon.
The Bill was introduced into this House in January and has been the subject of interesting discussion and debate between your Lordships during the following months. The Bill then passed to the other place in May and was considered by a Public Bill Committee before the Summer Recess. The Third Reading took place in the other place on Monday of this week and I am grateful to noble Lords for attending this afternoon to consider the amendments made since the Bill left this House.
On Amendment No. 1, the Government’s position has consistently been that we would change the law to permit intercept evidence only if the necessary safeguards could be put in place to protect sensitive techniques and capabilities, and the potential benefits outweighed the risks. Whether or not one supports a change in law to permit intercept evidence, the amendment of the noble and learned Lord, Lord Lloyd, was not the right way to take this forward for the reasons previously articulated. That is why it was removed during Committee stage in the other place. It is not my purpose here to go over well trodden ground on the debates on the Lords amendment. The fact is we recognise the strength of views on this issue and it is time to bring the debate to a conclusion. That is why we established a cross-party independent review on privy counsellor terms, to report its findings by the start of the parliamentary Session in November. The privy counsellors conducting the review are the noble and learned Lord, Lord Archer of Sandwell, the noble Lord, Lord Hurd of Westwell, the right honourable Alan Beith MP and the right honourable Sir John Chilcot, who is the chair.
It would be more appropriate to return to this debate once the privy counsellors have completed their review and the House can benefit from their detailed considerations. Until then, it would be unhelpful and inappropriate to enter into further debate.
Moved, That the House do agree with the Commons in their Amendment No. 1.—(Lord West of Spithead.)
My Lords, like the Minister, I rise for the first time on this Bill. Clearly, a lot of water has passed under many bridges since this started and we are arriving in port today.
The point raised by the noble and learned Lord, Lord Lloyd, on the admissibility of intercept evidence in courts is to be commended, as he is for his excellent work in pursuing the matter not only in relation to this Bill but in his introduction of Private Members’ Bills. We have supported him in that and will continue to do so. Indeed, he has been so successful that the Government have been forced to concede that there is a need to investigate this whole matter properly.
We are grateful to the Minister for saying that the privy counsellors’ committee has been set up. However, that was a little later than anticipated, so I wonder whether he will give us an indication of when it will start meeting, when it is likely to complete its review and when that will come back to the House for further consideration.
My Lords, I am an old lag in this; I have been through it all not once but on many occasions. We are very grateful that the Government have given way to the pressure exerted on them by the noble and learned Lord, Lord Lloyd, who has consistently put forward the case for the use of intercept evidence in court. That case has been supported by the previous Attorney-General, by Sir Ian Blair of the Metropolitan Police and by numerous people who really know what they are talking about.
I hope that the privy counsellors’ committee will come to the right conclusion. Our only worry is that things will be put in front of the members of the committee that will scare them to death and they will not be able to approach the matter as dispassionately as we hope. However, I am sure that that will not be the case; I am sure that they will consider all the evidence and report in due course.
My Lords, I will not rehearse all the arguments that have been made ad infinitum in this House about whether intercept material should be used as evidence in court. However, given the statements of the noble Baroness, Lady Hanham, and the noble Lord, Lord Thomas, I do not think that those of us who do not think as they do should allow the record to remain as it would if we did not speak.
I welcome the setting up of a privy counsellors’ committee to look at this issue. People like me, who think that the disadvantages and damage to national security and our intelligence and security agencies of allowing intercept material to be used in court would be enormous and would outweigh any benefits, have nothing to fear from a committee of privy counsellors looking at the matter. I, too, think that they will come to the right conclusion, although obviously I think that that conclusion will be different from that of the noble Lord, Lord Thomas. I have more faith in their nerve than he seems to have. I do not think that they will be panicked. They will be presented with evidence that those of us who have been in positions to know this area well at first hand are sure will make the facts very clear.
My Lords, let me add my voice to what has just been said. I, too, have faith in the Privy Council and believe that it will listen to what people such as Sir Swinton Thomas, who really knows what he is talking about, have consistently said: there is a danger and that danger should not be lightly taken. I do not believe that the Privy Council is in the least likely to be panicked. It will be sensible and, if it is, it will, I hope, reach the conclusion that we have fought for.
My Lords, I was unavoidably absent from the discussions that took place in this House in February and April of this year, although I have read the reports carefully. I join in paying tribute to the noble and learned Lord, Lord Lloyd.
I welcome the fact that a committee of privy counsellors is being set up, and I have no doubt that the matter will be thoroughly considered. Having said that, I fear very much that there will be a delay, which can be avoided, and that, even if a firm conclusion is arrived at fairly swiftly, there will still be a long delay before the legislative position is dealt with. I say that without in any way being churlish towards those who hold strong views in this matter. This is an issue where the protagonists on both sides seek exactly the same end. In each case, one wishes to protect the efficacy of the agencies of counter-crime and counter terrorism, as well as a system which is as just as possible in a practicable way.
Having said that, and with great respect to those who take a different view, from the very first I have thought that the argument is extremely one-sided in that all the evidence and available facts are on one side. It is not as though we are taking a course different from that in many other countries. This system has long been employed by Canada, Australia, New Zealand, South Africa and the United States of America. In June this year, Sir Ken Macdonald gave evidence to the Joint Committee on Human Rights. Speaking of the discussions that he had had with representatives from those countries, he said:
“We have spoken, as I think you probably know, a great deal to colleagues abroad, in the United States, Canada and Australia particularly, who have systems closest to ours. The message we have had from all of them is that it would make an enormous difference”.
In other words, the use of intercept communication such as this is central to combating crime and, indeed, to the just disposal of criminal cases.
In those circumstances, I should be grateful if the Minister could give an undertaking to the House that the decision will be arrived at swiftly and that, if there is a decision to implement, as I very much hope and trust there will be, again, it will be implemented without delay. The onus is on those who stand against the United Kingdom taking the same attitude as other countries in the world which have tried and proven the system to be efficacious and just.
My Lords, does the Minister agree that one issue that we have to face is teasing out intercept for intelligence purposes from intercept for criminal purposes, and that one of the strengths of the British system has been the close co-operation between intelligence and criminal investigation agencies? In answer to the noble Lord, Lord Elystan-Morgan, perhaps that marks us out from some of the other countries that he listed. Therefore, in considering this matter and the Privy Council report, will the Government bear in mind the distinction between intelligence gathering and gathering evidence for criminal prosecutions?
My Lords, I welcome the consensus over the fact that a committee of the Privy Council is looking at this very complex issue. I think that there have been seven previous major studies into it. I thank my noble and learned friend Lord Boyd of Duncansby for mentioning the difference between intelligence and criminality and, indeed, for pointing out the differences between us and other countries. It is very dangerous to say that certain behaviour goes on in other countries and that we should follow that route. We need to be extremely careful.
There is no doubt whatever that in the previous studies it had become clear, normally to the party in power—whether it be Labour or Conservative—that the balance of judgment was that there was more loss and more risk to us in going down this route. I do not now want to go through all the arguments because we have agreed that the Privy Council needs to look at this, which is absolutely right. The noble Lord, Lord Elystan-Morgan, correctly pointed out that we are all on the same side. All of us want to achieve the same thing. We want to catch those who are trying to destroy our way of life, and we want to bring them to justice and have them punished, as they should be, for what they are trying to do. There are clearly different views about what we lose by doing certain things, and I hope that that will be teased out by the Privy Council group which is comprised of some extremely able and capable people. I am sure that that will come out.
The noble Baroness, Lady Hanham, asked about timescales. I believe that the Privy Council has already started taking evidence. I shall confirm that, and I think that the noble and learned Lord, Lord Lloyd, who I know has a deeply held belief about this and certainly has notable persistence, has already spoken to them but I shall come back to the House on that. As it is so complicated, there may be some risk that the Privy Council may not be able to report as early in November as we had wanted, but we hope that it will have done the work so that it can inform discussions on the counter terrorism Bill. There will be an opportunity to discuss this further in the Chamber. I am glad that we welcome the Privy Council group; that is the right place for this matter to be considered initially. It is an extremely complicated issue. All sorts of matters are touched on that cannot be mentioned in this Chamber. I do not use that phrase to stop us debating it but there are extremely sensitive issues and, at times, those issues are very important to this nation and need to be looked at thoroughly and in the cold light of day.
On Question, Motion agreed to.
2: Clause 24, page 15, line 7, before “not”, insert “to discharge or”
3: Clause 25, page 15, line 25, leave out from beginning to “lies” and insert “Subject to subsection (4), an appeal under subsection (1) or (2)”
4: Page 15, line 25, at end add-
“(4) An appeal under subsection (1) or (2) lies without the leave of the Court of Appeal if the judge who made the decision grants a certificate that the decision is fit for appeal under this section.
(5) Subject to any rules of court made under section 53(1) of the Senior Courts Act 1981 (c. 54) (distribution of business between civil and criminal divisions), the criminal division of the Court of Appeal is the division which is to exercise jurisdiction in relation to an appeal under subsection (1) or (2) from a decision of the Crown Court in the exercise of its jurisdiction in England and Wales under this Part.
(6) An appeal against a decision of the Court of Appeal on an appeal to that court under subsection (1) or (2) may be made to the Supreme Court by any person who was a party to the proceedings before the Court of Appeal.
(7) An appeal under subsection (6) lies only with the leave of the Court of Appeal or the Supreme Court.
(8) Such leave must not be granted unless-
(a) it is certified by the Court of Appeal that a point of law of general public importance is involved in the decision; and(b) it appears to the Court of Appeal or (as the case may be) the Supreme Court that the point is one which ought to be considered by the Supreme Court.(9) The Secretary of State may for the purposes of this section by order make provision corresponding (subject to any specified modifications) to that made by or under an enactment and relating to-
(a) appeals to the Court of Appeal under Part 1 of-(i) the Criminal Appeal Act 1968 (c. 19); or(ii) the Criminal Appeal (Northern Ireland) Act 1980 (c. 47);(b) appeals from any decision of the Court of Appeal on appeals falling within paragraph (a); or(c) any matter connected with or arising out of appeals falling within paragraph (a) or (b).(10) An order under subsection (9) may, in particular, make provision about the payment of costs.
(11) The power to make an appeal to the Court of Appeal under subsection (1)(a) operates instead of any power for the person who is the subject of the order to make an appeal against a decision of the Crown Court in relation to a serious crime prevention order by virtue of-
(a) section 9 or 10 of the Criminal Appeal Act 1968 (c. 19); or(b) section 8 of the Criminal Appeal (Northern Ireland) Act 1980 (c. 47). (12) Section 33(3) of the Criminal Appeal Act 1968 (c. 19) (limitation on appeal from criminal division of the Court of Appeal: England and Wales) does not prevent an appeal to the Supreme Court under subsection (6) above.”
5: Clause 28, page 16, line 28, after “to”, insert “-
6: Page 16, line 29, leave out “as if it were” and insert “; and
(b) the company's winding up;as it applies in relation to”
7: Page 16, line 30, leave out “(petition for” and insert “for the winding up of a company and the company's winding up (”
8: Page 16, line 43, leave out “has effect” and insert “applies for the purposes of this section”
9: Page 17, line 1, leave out “Secretary of State” and insert “appropriate Minister”
10: Page 17, line 2, leave out “he” and insert “that person”
11: Page 17, line 2, after “appropriate,”, insert “in relation”
12: Page 17, line 3, at end insert “and the relevant body's winding up”
13: Page 17, line 9, at end insert-
“( ) No petition may be presented to, or order to wind up made by, a court in Scotland by virtue of this section in respect of a company, partnership or relevant body whose estate may be sequestrated under the Bankruptcy (Scotland) Act 1985 (c. 66).”
14: Page 17, line 22, at beginning insert-
““appropriate Minister” means-(a) in relation to a relevant body falling within paragraphs (a) to (c) of the definition of “relevant body” below, the Treasury; and(b) in relation to any other relevant body, the Secretary of State;”
15: Page 17, line 28, leave out “Scotland or”
16: Page 17, line 31, after “registered;”, insert-
““partnership” does not include a relevant body;”
17: Page 17, line 37, after “society;”, insert-
“(ca) a limited liability partnership;”
18: Clause 29, page 18, line 8, after “to”, insert “-
19: Page 18, line 8, leave out “as if it were” and insert “; and
(b) the company's winding up; as it applies in relation to”
20: Page 18, line 9, leave out “(petition for” and insert “for the winding up of a company and the company's winding up (”
21: Page 18, line 22, leave out “has effect” and insert “applies for the purposes of this section”
22: Page 18, line 24, leave out “Secretary of State” and insert “appropriate Minister”
23: Page 18, line 25, leave out “he” and insert “that person”
24: Page 18, line 25, after “appropriate,”, insert “in relation”
25: Page 18, line 26, at end insert “and the relevant body's winding up”
26: Page 18, line 45, at beginning insert-
““appropriate Minister” means-(a) in relation to a relevant body falling within paragraph (a) or (b) of the definition of “relevant body” below, the Treasury; and(b) in relation to any other relevant body, the Secretary of State;”
27: Page 19, line 9, after “registered;”, insert-
““partnership” does not include a relevant body;”
28: Page 19, line 15, after “society;”, insert-
“(ca) a limited liability partnership;”
29: Insert the following new Clause-
“Powers to wind up: supplementary (1) The Secretary of State may by order make such modifications as he considers appropriate to the application of-
(a) the Insolvency Act 1986 (c. 45) by virtue of section 28(2); or(b) the Insolvency (Northern Ireland) Order 1989 (S.I. 1989/2405 (N.I.19)) by virtue of section 29(2).(2) Any modifications made by virtue of subsection (1) are in addition to the modifications made by section 28(3) and (4) or (as the case may be) section 29(3) and (4).
(3) The Secretary of State may by order make such consequential or supplementary provision, applying with or without modifications any provision made by or under an enactment, as he considers appropriate in connection with section 28(2) to (4) or 29(2) to (4).
(4) An order made by virtue of section 28(5) or (6), section 29(5) or (6) or subsection (1) above may, in particular, contain consequential or supplementary provision applying, with or without modifications, any provision made by or under an enactment.”
30: Insert the following new Clause-
“Providers of information society services(1) A serious crime prevention order may not include terms which restrict the freedom of a service provider who is established in an EEA state other than the United Kingdom to provide information society services in relation to an EEA state unless the conditions in subsections (2) and (3) are met.
(2) The condition in this subsection is that the court concerned considers that the terms-
(a) are necessary for the objective of protecting the public by preventing, restricting or disrupting involvement in-(i) in the case of an order in England and Wales, serious crime in England and Wales; and(ii) in the case of an order in Northern Ireland, serious crime in Northern Ireland;(b) relate to an information society service which prejudices that objective or presents a serious and grave risk of prejudice to it; and(c) are proportionate to that objective.(3) The conditions in this subsection are that-
(a) a law enforcement officer has requested the EEA state in which the service provider is established to take measures which the law enforcement officer considers to be of equivalent effect under the law of the EEA state to the terms and the EEA state has failed to take the measures; and(b) a law enforcement officer has notified the Commission of the European Communities and the EEA state of-(i) the intention to seek an order containing the terms; and(ii) the terms.(4) It does not matter for the purposes of subsection (3) whether the request or notification is made before or after the making of the application for the order.
(5) A serious crime prevention order may not include terms which impose liabilities on service providers of intermediary services so far as the imposition of those liabilities would result in a contravention of Article 12, 13 or 14 of the E-Commerce Directive (various protections for service providers of intermediary services).
(6) A serious crime prevention order may not include terms which impose a general obligation on service providers of intermediary services covered by Articles 12, 13 and 14 of the E-Commerce Directive-
(a) to monitor the information which they transmit or store when providing those services; or(b) actively to seek facts or circumstances indicating illegal activity when providing those services. (7) For the purposes of this section-
(a) a service provider is established in a particular EEA state if he effectively pursues an economic activity using a fixed establishment in that EEA state for an indefinite period and he is a national of an EEA state or a company or firm mentioned in Article 48 of the EEC Treaty;(b) the presence or use in a particular place of equipment or other technical means of providing an information society service does not, of itself, constitute the establishment of a service provider;(c) where it cannot be determined from which of a number of establishments a given information society service is provided, that service is to be regarded as provided from the establishment where the service provider has the centre of his activities relating to the service;and references to a person being established in an EEA state are to be read accordingly.
(8) In this section-
“the E-Commerce Directive” means Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce);“information society services”-(a) has the meaning given in Article 2(a) of the E-Commerce Directive (which refers to Article 1(2) of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations); and(b) is summarised in recital 17 of the E-Commerce Directive as covering “any service normally provided for remuneration, at a distance, by means of electronic equipment for the processing (including digital compression) and storage of data, and at the individual request of a recipient of a service”;“intermediary services” means an information society service which-(a) consists in the provision of access to a communication network or the transmission in a communication network of information provided by a recipient of the service;(b) consists in the transmission in a communication network of information which-(i) is provided by a recipient of the service; and(ii) is the subject of automatic, intermediate and temporary storage which is solely for the purpose of making the onward transmission of the information to other recipients of the service at their request more efficient; or(c) consists in the storage of information provided by a recipient of the service;“recipient”, in relation to a service, means any person who, for professional ends or otherwise, uses an information society service, in particular for the purposes of seeking information or making it accessible; and“service provider” means a person providing an information society service.(9) For the purposes of paragraph (a) of the definition of “intermediary services”, the provision of access to a communication network and the transmission of information in a communication network includes the automatic, intermediate and transient storage of the information transmitted so far as the storage is for the sole purpose of carrying out the transmission in the network.
(10) Subsection (9) does not apply if the information is stored for longer than is reasonably necessary for the transmission.”
31: Clause 35, page 23, line 9, leave out subsections (4) and (5) and insert-
“(4) The Crown Court, when exercising its jurisdiction in England and Wales under this Part, is a criminal court for the purposes of Part 7 of the Courts Act 2003 (c. 39) (procedure rules and practice directions).”
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 2 to 31. This group deals with a number of amendments relating to serious crime prevention orders. The amendments touch on the following matters. Amendment No. 2 relates to appeals in relation to discharge of an order. Amendments Nos. 3, 4, 47 and 161 relate to the route of appeal from decisions of the Crown Court in relation to serious crime prevention orders. Amendments Nos. 5 to 8, 11, 12, 18 to 21, 24 and 25 are all minor and technical amendments relating to the winding up provisions in Clauses 28 and 29. Amendments Nos. 13 and 15 allow the winding up of bodies in Scotland. Amendment No. 29 inserts a new clause, “Powers to wind up: supplementary”. It contains order-making powers in relation to winding up with Amendments Nos. 48 and 53 consequential on that.
Amendments Nos. 62, 63, 65, 67, 68 and 70 all add offences in Schedule 1. Amendments Nos. 9, 10, 14, 22, 23 and 26 relate to who should exercise the order-making powers in relation to relevant bodies as set out in Clauses 28 and 29. Amendment No. 30 merely ensures that the Bill complies with the e-commerce directive. Amendment No. 31 provides that the appropriate committee for making rules of court in relation to serious crime prevention orders made in the Crown Court will be the Criminal Procedure Rules Committee. Amendment No. 59 makes it clear that the schedules to the Bill will be brought into force by order. Amendment No. 54 is a technical amendment to extend the clause. Amendment No. 71 relates that to the Director of Public Prosecutions for Northern Ireland and his duties under Sections 75 and 76 of the Northern Ireland Act 1998. Amendments Nos. 16, 17, 27 and 28 simply make it clear that limited liability partnerships are included in the provisions allowing for the winding up of organisations.
These are all relatively minor, technical amendments, so I do not propose to go into detail on each and every one. I am of course more than willing to answer questions that the House might have in relation to any of them.
Moved, That the House do agree with the Commons in their Amendments Nos. 2 to 31.—(Lord West of Spithead.)
On Question, Motion agreed to.
32: Insert the following new Clause-
“Compliance with orders: authorised monitors(1) A serious crime prevention order against a body corporate, partnership or unincorporated association may authorise a law enforcement agency to enter into arrangements with-
(a) a specified person; or(b) any person who falls within a specified description of persons;to perform specified monitoring services or monitoring services of a specified description.
(2) A person with whom the agency has entered into arrangements in accordance with such an authorisation is known for the purposes of this section as an authorised monitor.
(3) A serious crime prevention order which provides for an authorised monitor may, for the purpose of enabling the performance of monitoring services, impose requirements of the type mentioned in section 6(5) as if the references in paragraph (a)(iv) and (b)(iv) of that provision to a law enforcement officer included references to an authorised monitor.
(4) A serious crime prevention order which provides for an authorised monitor may require any body corporate, partnership or unincorporated association which is the subject of the order to pay to the law enforcement agency concerned some or all of the costs incurred by the agency under the arrangements with the authorised monitor.
(5) Any such order-
(a) must specify the period, or periods, within which payments are to be made;(b) may require the making of payments on account;(c) may include other terms about the calculation or payment of costs.(6) The tests for making or varying a serious crime prevention order in sections 1(1)(b), (2)(b) and (3), 18(1) and (2), 20(2), (4) and (5), 21(2) and (4) and 22(2) and (4) do not operate in relation to an order so far as the order contains terms of the kind envisaged by subsections (4) and (5) above (or by subsection (1) above for the purposes of those subsections).
(7) But a court must not include in a serious crime prevention order (whether initially or on a variation) terms of the kind envisaged by subsection (4) or (5) unless it considers that it is appropriate to do so having regard to all the circumstances including, in particular-
(a) the means of the body corporate, partnership or unincorporated association concerned;(b) the expected size of the costs; and(c) the effect of the terms on the ability of any body corporate, partnership or unincorporated association which is carrying on business to continue to do so.(8) A law enforcement agency must inform the subject of a serious crime prevention order which provides for an authorised monitor of the name of, and an address for, any person with whom the agency has entered into arrangements in accordance with the authorisation in the order.
(9) Nothing in this section affects the ability of law enforcement agencies to enter into arrangements otherwise than in accordance with an authorisation under this section.
(10) In this section-
“law enforcement agency” means-(a) a police authority or the Northern Ireland Policing Board;(b) the Serious Organised Crime Agency;(c) the Commissioners for Her Majesty's Revenue and Customs; or(d) the Director of the Serious Fraud Office;“monitoring services” means-(a) analysing some or all information received in accordance with a serious crime prevention order;(b) reporting to a law enforcement officer as to whether, on the basis of the information and any other information analysed for this purpose, the subject of the order appears to be complying with the order or any part of it; and(c) any related services; and“specified”, in relation to a serious crime prevention order, means specified in the order.”
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 32. Before I get into the body of the commentary on these amendments, I ought first to apologise to the House for the fact that this amendment was not brought forward during the Bill’s original passage through your Lordships’ House. I would not normally be seeking support for an amendment made in another place which brought forward such substantive policy at a late stage in a Bill. It is deeply regrettable that that is the case, but the logic of the Bill is such that it is appropriate that this amendment be made at this point. I shall explain why this is the case.
I hope that the House will allow me to explain—I will go carefully through the arguments—why the amendment warrants inclusion at this point. In taking through this Bill, my colleagues, the Attorney-General and, in another place, Vernon Coaker, have tried to listen carefully to the views of Parliament and stakeholders to ensure that any improvements that could be made to the provisions were made. We have also continued to look at how similar provisions have worked in other jurisdictions; we have of course had some discussion about that on the first group of amendments.
When researching how the United States operates its Racketeer Influenced and Corrupt Organisations Act—legislation it uses effectively to combat the mafia—it became apparent that there might be a way to improve how the Bill provided for the enforcement of serious crime prevention orders in relation to organisations. We looked at some of the provisions which had been effective in the United States and worked to translate some of the ideas contained within them into this jurisdiction. This was obviously a complicated process, and one which, as noble Lords would expect, took some considerable time. We were concerned to ensure that all appropriate safeguards were carefully put in place and that any provision we brought forward was in compliance with our ECHR obligations. We also wanted to ensure that it fitted with the approach that had been put forward in the Hampton review and, following that, by Professor Macrory in his report Regulatory Justice: Making Sanctions Effective. Professor Macrory advocated that regulatory sanctions were consistent with, and appropriate for, a risk-based approach to regulation as set out in recommendation 8 of the Hampton review.
The Hampton review recommended that the penalty regime should be based on the risk of reoffending and the impact of the offence, with tougher penalties for rogue businesses that persistently break the rules. While we are talking about involvement in serious crime, there is a significant read-across between the approach he advocates and the innovative and targeted approach we have brought forward with these amendments. They sought to address the fact that businesses can be effectively used by serious criminals, either as little more than fronts for serious criminal behaviour or as a means of concealing serious criminal activity from law enforcement. Businesses can be in more than one place at one time. They can have complicated legal structures and can carry out exceedingly complex business and large amounts of transactions on a daily basis. All these things make them difficult to interdict in their involvement or use in serious criminal enterprises.
We must ensure that we allow law enforcement to target those businesses which are involved in serious crime with what is effectively a higher regulatory burden. This will enable them to be prevented from continual engagement with serious crime while, at the same time, keeping a light-touch regulatory burden in a particular sector for those organisations not so engaged. So, for example, where a business has been proven to be involved in serious crime, an order can require it to provide its accounts or other information to an authorised monitor to ensure that it complies with a requirement not to conduct its business in a particular way. This will be effective where the information concerned is particularly complex and where someone like a forensic accountant will be able to make a far better assessment of the way the business is conducting itself than law enforcement would be able to by itself.
This effectively increases the regulatory burden on the business and brings with it an additional cost to that business. That is the cost of showing that it is acting in a way we would expect all businesses to act; that is, that it is not involved in serious crime. This cost is targeted, as advocated by Professor Macrory, through a risk-based approach, based on previous involvement in serious crime.
Regulation does, of course, impose a cost on business, but we can all agree that this is better than the results of no regulation at all. Similarly here, there is the potential, where reasonable and proportionate, for there to be a burden on the business concerned, but this is to be preferred to the potential cost of having to regulate an entire sector.
There is also a safeguard included in the amendments whereby the court will impose a requirement to pay the costs only where it considers it to be appropriate to do so. In coming to this decision, it will have to have regard, first, to the means of the body corporate, partnership or unincorporated association concerned; secondly, the expected size of the costs; and, thirdly, the effect of the terms on the ability of the body corporate, partnership or unincorporated association which is carrying on business to continue to do so.
This provides a very strong steer to the courts to ensure that orders in relation to costs are used only where the overall effect on the business is not such as to cause damage to it as a continuing concern. We need to ensure that businesses are not being used by serious criminals while, at the same time, recognising the importance of ensuring that the business sector as a whole is not damaged by measures designed to combat the few. These amendments strike this balance.
Finally, I know and understand that some noble Lords have expressed an interest as to how the cost process will work. As I said, we have included the safeguard to ensure that the court looks at certain factors such as the means of an organisation in deciding whether a provision is appropriate. We have included in the new clauses provision for the details of how costs will be assessed to be set out by order. I do not think it is necessary to have such detail in the Bill, but perhaps it will be useful to make a few points clear.
First, the courts, in exercising their discretion as to whether to include provision for costs in an order, will act in a way that is reasonable and proportionate. We anticipate that costs will be assessed by the court on the basis of the expected costs of the authorised monitor which is employed. The court can provide that the organisation will have to pay some or all of the costs of the monitor. It will be open to the organisation to appeal against the inclusion of such a term in the order in the usual way. Finally, provision will then be made for an appeal against the quantum of the costs themselves through the order-making power in the new clause.
Lastly, I apologise again for the lateness in introducing the amendment, but it is one which we believe can help to make a difference in a very specific and targeted way to the success of law enforcement’s fight against serious criminals. As a result, while I regret its lateness, we would have been remiss indeed not to bring forward the amendments in the way that we have. I trust that the House will feel able to accept them.
Moved, That the House do agree with the Commons in their Amendment No. 32.—(Lord Bassam of Brighton.)
rose to move Amendment No. 32A, as an amendment to the Motion that this House do agree with the Commons in their Amendment No. 32, leave out “agree” and insert “disagree”.
The noble Lord said: My Lords, the Minister has been good enough to apologise for the late delivery of these amendments during the passage of the Bill. It started here and went through all its stages and then went to the House of Commons and went through all its stages, but the first intimation that we had of this clause, which the Minister described as a substantial innovation, was by a letter dated 15 October—a week last Monday—that was received the following day. That gave no time for any outside interests to consider the way in which they should respond to the Government’s amendment. We on these Benches say that it is quite unacceptable in principle that amendments should be delivered so late that debate becomes simply a brief discussion between Members of this House without outside involvement. This was thrust upon the Commons in such a way that it had no time to respond.
Turning to the merits of the matter, the Minister referred to Professor Macrory and has put some store by his views as expressed in his report Regulatory Justice: Sanctioning in a post-Hampton world. Professor Macrory was concerned with the best way of regulating what goes wrong in business. He said:
“we need a far more flexible system of regulatory sanctions in this country–one that will provide better incentives for legitimate businesses to comply with regulations, and one that gives greater acknowledgement to the interests of victims. My vision for a system of regulatory sanctions will allow regulators to respond far more proportionately to the circumstances and facts of a particular breach.
“While giving regulators a wider range of sanctioning options to enforce regulatory compliance, the proposals also protect business from heavy handed implementation and enforcement”.
Indeed, he insisted that the only cases that should be prosecuted are those where there is evidence of intent, knowledge, recklessness or gross negligence. Otherwise, the sanctions that should be imposed upon a business should be otherwise than through the criminal courts.
How does the Bill respond to Macrory, bearing in mind that the amendment was produced only last week? The Bill introduces serious crime prevention orders. We have opposed them on principle because, like ASBOs, they require a civil standard of proof and permit hearsay evidence and civil procedures to be used for the making of the order. However, they apply not just to those who have been convicted of crime, but to those who facilitate the commission by another person of a serious offence. Clause 5 states that the court must ignore the intentions or any other aspect of the mental state at the time of the company or personality against whom an order is made. Similarly, an order can be made not only if a person facilitates the commission of a serious offence but also if he conducts himself in a way that is likely to facilitate the commission by himself or another person of a serious offence. Again, the court must ignore his intentions or any other aspect of his mental state at the time. So while Macrory in his report is saying that we should not use criminal prosecutions for businesses unless there is intent, recklessness, gross negligence or so on, the Bill introduces the concept of penal orders being made against people who do not really know what has happened. Provided that it can be proved on a balance of probabilities, with hearsay evidence, that they have conducted themselves in a way that is likely to facilitate a criminal offence, the order can be made. As I have said, it can be made against corporations, companies, partnerships and associations of one sort or another.
Subsection (1) of the proposed new clause states:
“A serious crime prevention order against a body corporate, partnership or unincorporated association may authorise a law enforcement agency”—
such as the Serious Organised Crime Agency, the Director of Public Prosecutions or the police—
“to enter into arrangements with —
a specified person; or
(b) any person who falls within a specified description of persons;
to perform specified monitoring services or monitoring services of a specified description”.
It does not attempt to say who the specified person is or to create a class of people who can be employed for these purposes, nor does it suggest what monitoring services or what description of monitoring services the authors of the amendment have in mind.
However, the real sting in the tail is that if an order is made against a business which, as I have pointed out, does not require it to be party to a crime but merely to have facilitated it in some way, knowingly or unknowingly, the costs of the monitoring will fall on them. The proposed new clause in Amendment No. 33, which is to be taken with that proposed in Amendment No. 32, places no limitation on the costs. Therefore, at the very end of the parliamentary process, a Bill is introduced that imposes on a business, its partners and its principles a monitoring order and the payment of unspecified costs that may be incurred in its imposition.
If we had had the opportunity to work through and amend the clause, and to consider the policy issues behind it, we might have arrived through the parliamentary process at an acceptable provision, but we find ourselves with a clause that imposes onerous and difficult provisions on the businesses concerned. That is quite contrary to Macrory. Although my learned friend quoted Macrory, he did not go to the principles that he represents and imposed on businesses these great burdens. I beg to move.
Moved, as an amendment to the Motion that this House do agree with the Commons in their Amendment No. 32, leave out “agree” and insert “disagree”—(Lord Thomas of Gresford.)
My Lords, I join the noble Lord, Lord Thomas of Gresford, in expressing concern about how the amendments arrived in this House. The Minister gave a handsome apology, and so he should have done. This is a desperately late stage to introduce extremely important amendments to the Bill. We are always being told about procedure in this House; in fact, Third Reading has become by and large a brief session because of the way in which procedures have been tightened by the Government. Therefore, it seems only correct and logical that where procedures exist, the Government follow them and do not leave us all in the serious situation of having to look at these amendments, which, as the noble Lord, Lord Thomas, said, will have a great impact on businesses.
If it were not for the fact that there are some measures in the Bill with which we agree, I should be very inclined to agree with the amendment of the noble Lord, Lord Thomas. I am not going to, but that does not stop me saying what I think needs to be said about these amendments. First, there is no time to give them proper scrutiny. We cannot do that today. We can make our observations, and no doubt the Minister will hazard some response to some of the questions we ask, but the fact is that this part of the Bill will go through unscrutinised either by the House of Commons or this House. Most of our role is to ensure that legislation is properly scrutinised where quite often it gets a brief scrutiny in the House of Commons. We have been denied that opportunity. Therefore, I believe that this part of the legislation will be less than adequate as a result.
As has already been said, these amendments introduce substantial additions to the serious crime prevention orders, and they could, as the noble Lord, Lord Thomas, said, place untenable burdens on companies simply because they happen to be unlucky enough to get tangled up, perhaps unwittingly, in a web of serious crime perpetrated by another body or individual. They will then have a monitor beamed in and will have to foot the likely extremely expensive bill for that monitor.
I appreciate the provision in subsection (7) that requires the court to consider the likely damage that would be caused by inflicting an authorised monitor on a company, especially on a small or medium-sized business. Will the Minister explain what the Government expect would constitute an inappropriate set of circumstances that would prevent an authorised monitor being sent in and the company having to bear the costs? There is nothing that says that the court may not inflict a monitor if it considers the potential payment to be punitive. I look to the Minister to reassure us that there has been adequate consultation not only with industry and business but also with the High Court on these issues. If the consultation has not taken place, will the Minister commit the Government to undertaking post-legislative consultation with the courts before these provisions are implemented so that it could be made clear that any punitive fine dressed up as costs is absolutely unacceptable?
It is appropriate that these orders should not apply to companies unless they have been subject already to a serious crime prevention order. While everybody in the passage of the Bill has had their criticisms of serious crime prevention orders and how they are meted out, they are now going to be part of the legislation; that is that, so we will have to deal with them. However, these amendments seriously extend the application of the serious crime prevention orders, turning them into a far more punitive measure than they were before. Can the Minister elaborate on what percentage of serious crime prevention orders would come with monitoring orders? It would be helpful if he could give us an indication of a situation in which these orders might apply.
The amendment proposes to force companies to admit an authorised monitor, but it makes no mention or definition of what an authorised monitor may or may not be. Can the Minister confirm who will be an authorised monitor? Who will choose the monitoring service, and what checks, balances and accountability will be placed on bodies that will effectively be doing the job of the law enforcer by proxy.
It is not just this amendment that your Lordships have not had the opportunity to subject to the proper stages of debate, consideration and consultation. The previous Minister, the noble and learned Baroness, Lady Scotland, was very clear in stating that the Bill went to another place in a state of good health. Indeed, she was most relaxed about it when she said on Report:
“We have done a great deal of work to obviate the need for more when the matter goes to the other place. We would have preferred to tie up all the loose ends”—
these are hardly loose ends—
“but I am not confident that we will be able to dot every “i” and cross every “t”. I suppose it will give the other place a little something to do”.—[Official Report, 30/4/07; col. 880.]
The other place has not had quite enough to do, because it could have looked at these amendments in good time.
We are very dismayed, as I hope I have made clear. I have asked the Minister some questions which I hope he will be able to answer. There are, however, enough virtues in the Bill not to vote today for the Liberal Democrats’ amendment, if they move it, which seeks to have these amendments to the Bill taken out. However, the Government need to take very seriously the point that they have breached the etiquette not only of this House but of the other place by tabling at the very last stages of the Bill a large group of amendments that need scrutiny and will not have it.
My Lords, I support the noble Lord, Lord Thomas of Gresford, and the remarks made by my noble friend. I am not going to discuss the merits of these two pages of fresh legislation—I am not qualified to do so, as I suspect many others here are not—but, my goodness, I recognise an abuse of the parliamentary system when I see it. It is outrageous that Ministers should have brought forward this detailed and important legislation at this stage of the Session. Will the Minister explain exactly how this happened? Who put it forward? When was it put forward? Did Ministers remonstrate? Were they strong enough to say, “No, this is not how you legislate”? Quite frankly if I were a member of this Government, I would be deeply ashamed of attempting to legislate in this manner. There should be a discussion between the usual channels about whether the Bill could be carried over, so that it is adequately discussed and we have a proper piece of legislation. There is already much too much Home Office legislation, and more is coming in the next Session. No doubt some of these matters could be attended to in that forthcoming legislation. Home Office legislation is much too important for there to be imposed on the community and the country the sort of costs and mistakes that inevitably will emerge from this new clause.
My Lords, as your Lordships may remember, I am deeply opposed to serious crime prevention orders anyway, but having listened to the three speeches that we have just heard, it seems that the Government really should take this clause away and think about it again rather than producing it at this stage. Following the suggestion of the Lord, Lord Marlesford, could it somehow be carried over? To introduce this new clause into the Bill at this stage does seem to be an abuse of process.
My Lords, I take the House’s admonitions very seriously. I listened very carefully to what the noble Baroness, Lady Hanham, said, to the full fury of the noble Lord, Lord Marlesford, and to the reasoned plea by the noble and learned Lord, Lord Lloyd, as well as to the outright opposition on the part of the noble Lord, Lord Thomas of Gresford, to the whole notion of including the clause in the Bill. I recognise that it is unusual, although not completely so, for our Government and other Governments to seek at late stages in the progress of a piece of legislation to include new measures or measures that add a new twist to an existing policy that is set out in the terms of that legislation. It is therefore not completely unusual. I do, however, accept the fundamental point made by the noble Baroness that it is generally highly undesirable to put into a Bill at a late stage something that has not had the opportunity that we usually afford government Bills, not only in your Lordships’ House but in another place, to be given very detailed and line-by-line scrutiny.
I also heard the noble Baroness’s question about whether we would be willing to agree to some form of post-legislative scrutiny with the judiciary on this matter. In a sense, that was also the plea of the noble and learned Lord, Lord Lloyd, and part of the thinking behind the very sharp observations on the amendments made by the noble Lord, Lord Marlesford.
My simple answer to the question is yes, we are more than happy to have post-legislative scrutiny on this particular set of amendments. It makes absolute sense. In any event, we are seeking to work very closely with the judiciary on this to ensure that the cost provisions in particular are not used in any way that could constitute a punitive sanction on legitimate businesses. The forensic way in which this piece of the picture—this part of the Bill—will be used demands that we do exactly that.
I hear those admonitions. I recognise their seriousness and I am grateful to the noble Baroness in particular for committing the Opposition Benches to not supporting the Liberal Democrat amendment, which would remove our amendment from the Bill. I will happily ensure that we also invite noble Lords to make further post-legislative contributions to air and examine some of the detail that will be needed to thrash out how these amendments will operate in practice.
I will now move on to some of the other questions and issues that are important in the context of these amendments. There is a generalised allegation, which is quite understandable, that paying for the costs of monitoring could put quite legitimate and serious businesses out of business. That is exactly what we want to avoid. We know that companies and other bodies can be used by serious criminals in a complex and considerable variety of ways. Some of these will mean that the business is little more than a front and some will simply be using the resources of a larger company.
There are two imperatives here that we are trying very carefully to take into account: first, that we should be seeking to stop these businesses being used to further serious criminal ends, and, secondly, that, where possible, if a company is maintaining any legitimate business elements, these should be protected and maintained. In doing that, I could fairly argue that we are adopting McCrory principles, because the potential for authorised monitors balances these two imperatives very well. It means that we can put in place what is effectively a targeted higher form of regulation, where appropriate, which will help to ensure that future involvement in serious crime is prevented.
Almost as importantly, the court will ensure that the impact of the costs of the monitor on the business is fully taken into account in deciding whether it is an appropriate term for an order. They will look at the means of the body corporate, partnership or unincorporated association concerned, as I explained earlier. They will look at the expected size of the costs and look very carefully at the effects of the terms on the ability of any body corporate, partnership or unincorporated association that is carrying on the business to continue to do so. It is also the case that these monitors will be useful where there is a great deal of complexity in the business concerned—where there are a very high number or particularly complex business transactions being conducted, for example.
Businesses with such complex structures are almost certainly more likely to be able to bear the cost of the monitor than a smaller, less complex organisation. We should be confident that the costs are very unlikely to be so high as to put an organisation out of business.
The noble Lord, Lord Thomas of Gresford, pointed out that businesses would be paying for criminal activity that has never been proved against them. But our argument is that that is not the case. What we are doing here is requiring an organisation that has been proven to be involved in serious crime to pay the cost of what is effectively akin to raising the regulatory burden on it. It is only right that we recognise that organisations can be used very effectively to provide a means for serious criminals to achieve things that would not otherwise be within their scope. For example, money laundering as a private individual is virtually impossible without some form of organisation, such as a suspect bureau de change, providing some form of facilitation.
We can also argue that there is nothing new in asking businesses to prove that they are acting within acceptable norms in the way that they are carrying out their activities. Sometimes, that proof comes with a cost to the business, such as the cost of employing auditors for their accounts. Here, we are simply providing a means of targeting that approach against those organisations where the court has reasonable grounds to believe that future involvement in serious crime may be prevented, certainly restricted and most certainly disrupted.
I should deal with one or two other questions. The noble Baroness, Lady Hanham, asked who the monitor will be, who will choose and what checks and balances there will be. A monitor will have to be an expert in the information that they receive. A good example would be an accountant or perhaps a logistics expert. It will be for law enforcement officers to advise who is best to undertake that work—some of it will need to be extremely forensic in its nature. What checks and balances will there be? That is an entirely proper question. The answer, very simply, is that, from time to time, there will have to be a return to the court for variation, validation and discharge. So the court will operate as a check and a balance in those cases. The noble Lord, Lord Thomas, asked a similar question and I think that my response probably covers his point about who will specify who the monitors are.
I have covered the issue of costs and the allegation that they may be punitive. I do not believe that they will; they will be proportionate. The fact of the court acting as a check and a balance in the way that it will should ensure that the system operates fairly.
I am very grateful to noble Lords for their contributions. I recognise the sincerity of the concerns raised and criticisms made. I commit the Government to some form of post-legislative scrutiny on the government amendments. I accept that this is a less than perfect way to approach the matter. It would be inappropriate to withdraw our amendments at this stage, because this is the most appropriate piece of legislation for them to be a part of. They certainly fit within the serious crime prevention order remit and work well with the general fact of the legislation. It would be wrong for us not to provide those useful and necessary tools to law enforcement at a time when we are stepping up our efforts to disrupt high value crime and adopting this approach to disrupt serious criminals.
I cannot give precise figures for the percentage of cases in which we may need an intervention of the type that we have been discussing, but in considering the impact of the legislation, officials estimated that there might be some 30 or so serious crime prevention orders a year. A majority of those will be against individuals; a smaller number will be against organisations. So we are considering a small number of orders in any event and an even smaller number in which this approach might be needed. That is right because we need to be very careful about how the powers apply and how the legislation works.
My Lords, I wonder whether the Minister, having committed himself to post-legislative scrutiny—I am grateful to him for doing so—would be kind enough to write to us to let us know what that will be so that we can at least be satisfied that the scrutiny will take place in a way that will bring the right results.
My Lords, that is a very helpful suggestion. I was in any event going to ensure that we set out the terms of any post-legislative scrutiny exercise that was undertaken. I shall be more than happy to share that correspondence with all those who have participated in the debate and ensure that we lodge a copy of that correspondence in the House Library.
My Lords, the noble Lord, Lord Marlesford, said that what had happened was outrageous. As he said that, I wrote down the rather more lawyerly words “abuse of process”, which the noble and learned Lord, Lord Lloyd, then used. It is an abuse of process to legislate in this way. It is an abuse of this House that we have these clauses brought to it at the last moment and then are given promised very vague promises of post-legislative scrutiny.
I am grateful to the noble Lord, Lord Bassam, for his attempts to ameliorate the situation—I know he does so with the very best intent—but it is not acceptable. For that reason, and as a matter of principle—whether or not those on Her Majesty’s Official Opposition Benches support us—I propose to test the opinion of the House.
On Question, Motion agreed to.
33: Insert the following new Clause-
“Costs in relation to authorised monitors(1) The Secretary of State may by order make provision about the practice and procedure for determining the amount of-
(a) any costs payable by virtue of section (Compliance with orders: authorised monitors)(4) and (5); and(b) any interest payable in respect of those costs.(2) Such provision may, in particular, include provision about appeals.
(3) Where any amounts required to be paid by virtue of section (Compliance with orders: authorised monitors)(4) and (5) have not been paid within a required period, the law enforcement agency concerned must take reasonable steps to recover them and any interest payable in respect of them.
(4) The Secretary of State must by order provide for what are reasonable steps for the purposes of subsection (3).
(5) Any amounts which have not been recovered despite the taking of the reasonable steps are recoverable as if due to the law enforcement agency concerned by virtue of a civil order or judgment.
(6) Where any amounts required to be paid by virtue of section (Compliance with orders: authorised monitors)(4) and (5) are, in the case of an order of the Crown Court, not paid within a required period, the unpaid balance from time to time carries interest at the rate for the time being specified in section 17 of the Judgments Act 1838 (c. 110) (interest on civil judgment debts).
(7) For the purposes of section 26, a failure to comply with a requirement imposed by virtue of section (Compliance with orders: authorised monitors)(4) and (5) to make payments occurs when the amounts become recoverable as mentioned in subsection (5) above (and not before).
(8) In this section “law enforcement agency” has the same meaning as in section (Compliance with orders: authorised monitors).”
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 33.
Moved, That the House do agree with the Commons in their Amendment No. 33.—(Lord Bassam of Brighton.)
[Amendment No. 33A not moved.]
On Question, Motion agreed to.
34: Page 29, line 29, at end insert-
“(4A) Nothing in this section or Schedule 4 restricts the operation of any enactment by virtue of which an act constituting an offence under this Part is triable under the law of England and Wales or Northern Ireland.”
35: Insert the following new Clause-
“Institution of proceedings etc. for an offence under this Part(1) Any provision to which this section applies has effect with respect to an offence under this Part as it has effect with respect to the anticipated offence.
(2) This section applies to provisions made by or under an enactment (whenever passed or made) that-
(a) provide that proceedings may not be instituted or carried on otherwise than by, or on behalf or with the consent of, any person (including any provision which also makes exceptions to the prohibition);(b) confer power to institute proceedings;(c) confer power to seize and detain property;(d) confer a power of forfeiture, including any power to deal with anything liable to be forfeited.(3) In relation to an offence under section 43-
(a) the reference in subsection (1) to the anticipated offence is to be read as a reference to any offence specified in the indictment; and(b) each of the offences specified in the indictment must be an offence in respect of which the prosecutor has power to institute proceedings.(4) Any consent to proceedings required as a result of this section is in addition to any consent required by section 50.
(5) No proceedings for an offence under this Part are to be instituted against a person providing information society services who is established in an EEA State other than the United Kingdom unless the derogation condition is satisfied.
(6) The derogation condition is satisfied where the institution of proceedings-
(a) is necessary to pursue the public interest objective;(b) relates to an information society service that prejudices that objective or presents a serious and grave risk of prejudice to it; and(c) is proportionate to that objective.(7) The public interest objective is public policy.
(8) In this section “information society services” has the same meaning as in section (Providers of information society services), and subsection (7) of that section applies for the purposes of this section as it applies for the purposes of that section.”
36: Insert the following new Clause-
“No individual liability in respect of corporate manslaughterIn section 18 of the Corporate Manslaughter and Corporate Homicide Act 2007 (c. 19) (no individual liability for offences under that Act) after subsection (1) insert-
“(1A) An individual cannot be guilty of an offence under Part 2 of the Serious Crime Act 2007 (encouraging or assisting crime) by reference to an offence of corporate manslaughter.””
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 34 to 36 en bloc.
Part 2 creates new offences of encouraging and assisting crime. The inclusion of these offences in the Bill follows a report by the Law Commission in 2006 which recommended the creation of these offences and highlighted how useful they would be against those involved in serious organised crime.
The excellent work conducted by the Law Commission is the reason why Part 2 has been so well received and why the changes that were made during the Bill’s passage in the other place were purely technical and merely ensure that these provisions operate effectively. In brief, a number of offences were added to Schedules 3 and 6 and we made provision in relation to instituting proceedings, provided what should happen in relation to conflicts of jurisdiction and provided clearer transitional arrangements.
I confirm that these are mostly technical amendments, that there are no new policy implications behind them and that they are entirely in line with Law Commission recommendations. I am more than happy to respond to questions on the amendments if your Lordships wish.
Moved, That the House do agree with the Commons in their Amendments Nos. 34 to 36 en bloc.—(Lord Bassam of Brighton.)
On Question, Motion agreed to.
37: Insert the following new Clause-
“Code of practice for disclosure of information to prevent fraud(1) The Secretary of State must prepare, and keep under review, a code of practice with respect to the disclosure, for the purposes of preventing fraud or a particular kind of fraud, of information by public authorities as members of specified anti-fraud organisations or otherwise in accordance with any arrangements made by such organisations.
(2) Before preparing or altering the code, the Secretary of State must consult-
(a) any specified anti-fraud organisation;(b) the Information Commissioner; and(c) such other persons as the Secretary of State considers appropriate.(3) A public authority must have regard to the code in (or in connection with) disclosing information, for the purposes of preventing fraud or a particular kind of fraud, as a member of a specified anti-fraud organisation or otherwise in accordance with any arrangements made by such an organisation.
(4) Nothing in this section applies in relation to any disclosure by a relevant public authority of information whose subject-matter is a matter about which provision would be within the legislative competence of the Scottish Parliament if it were included in an Act of the Scottish Parliament.
(5) The Secretary of State must-
(a) lay a copy of the code, and of any alterations to it, before Parliament; and(b) from time to time publish the code as for the time being in force.(6) In this section-
“information” and “public authority” have the same meaning as in section 63;“relevant public authority” has the meaning given by section 63(6); and“specified anti-fraud organisation” means any person which is a specified anti-fraud organisation for the purposes of section 63.”
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 37.
We made a number of small amendments to the data sharing and data matching provisions of the Bill during its passage through the other place. The first and most substantial of those is to introduce a requirement on the Secretary of State to producea code of practice governing the disclosure of information by public authorities for the prevention of fraud. That measure was introduced on the basis of a suggestion made by the Information Commissioner. A minor and technical amendment was made to the extent of the code of practice so that it included the correct exclusions for devolved Scottish public authorities. Three minor technical amendments were made to the data matching provisions in committee in the Commons. The amendments simply clarified the definition of “relevant NHS body” so that it captured all relevant health bodies in England, Wales and Northern Ireland.
Again, I offer to respond to any specific points and questions raised, but there are no new policy implications in the amendments. There are some new safeguards involved, particularly by virtue of the code of practice. We had some useful discussions with the noble Baroness, Lady Anelay, over the summer period, when many of the contentious issues that may have arisen were happily dealt with in correspondence and conversation to the satisfaction of the noble Baroness.
Moved, That the House do agree with the Commons in their Amendment No. 37.—(Lord Bassam of Brighton.)
My Lords, I take up the Minister’s very kind invitation. Will he direct his attention to paragraph (2) in the amendment? Can he explain to me now, or in writing, subparagraphs (2)(a), (b) and (c)? I am fascinated by the references to “the Information Commissioner” and,
“such other persons as the Secretary of State considers appropriate”.
Paragraph (4) is on an Act of the Scottish Parliament “within the legislative competence”, and perhaps he might be able to enlighten me about that.
I am not a lawyer, but I declare an interest as a member of the Chartered Accountants of Scotland. I wonder whether these provisions in combination will affect what is discussed in the amendment, let alone the position north of the border, if it is different—I suspect it could be—in Scots law, as opposed to the measure in front of us. Perhaps the noble Lord could write to me or, if he has any briefing on this, I shall of course listen with patience.
My Lords, I dread to get into the detail of the finer points of our relationships with our colleagues north of the border, but I understand that our relationships are in good order. Perhaps I will take up the noble Lord’s offer of providing him with a note on these matters. My understanding is that satisfactory discussions have been had and that the principles behind the legislation will work well across all jurisdictions. I will share the contents of the letter with the noble Baroness, Lady Hanham, and the noble Lord, Lord Thomas of Gresford.
On Question, Motion agreed to.
38: Insert the following new Clause-
“Powers of management receivers and enforcement receivers(1) After section 49(8) of the Proceeds of Crime Act 2002 (c. 29) (opportunity for persons to make representations before powers conferred on management receivers to manage or otherwise deal with property: England and Wales) insert-
“(8A) Subsection (8), so far as relating to the power mentioned in subsection (2)(b), does not apply to property which-
(a) is perishable; or(b) ought to be disposed of before its value diminishes.”(2) After section 51(8) of that Act (opportunity for persons to make representations before powers conferred on enforcement receivers to manage or otherwise deal with property: England and Wales) insert-
“(8A) Subsection (8), so far as relating to the power mentioned in subsection (2)(b), does not apply to property which-
(a) is perishable; or(b) ought to be disposed of before its value diminishes.” (3) After section 197(8) of that Act (opportunity for persons to make representations before powers conferred on management receivers to manage or otherwise deal with property: Northern Ireland) insert-
“(8A) Subsection (8), so far as relating to the power mentioned in subsection (2)(b), does not apply to property which-
(a) is perishable; or(b) ought to be disposed of before its value diminishes.”(4) After section 199(8) of that Act (opportunity for persons to make representations before powers conferred on enforcement receivers to manage or otherwise deal with property: Northern Ireland) insert-
(a) is perishable; or(b) ought to be disposed of before its value diminishes.””
39: Insert the following new Clause-
“Civil recovery management receivers(1) After section 245D of the Proceeds of Crime Act 2002 (c. 29) (property freezing orders) insert-
“245E Receivers in connection with property freezing orders(1) Subsection (2) applies if-
(a) the High Court makes a property freezing order on an application by an enforcement authority, and(b) the authority applies to the court to proceed under subsection (2) (whether as part of the application for the property freezing order or at any time afterwards).(2) The High Court may by order appoint a receiver in respect of any property to which the property freezing order applies.
(3) An application for an order under this section may be made without notice if the circumstances are such that notice of the application would prejudice any right of the enforcement authority to obtain a recovery order in respect of any property.
(4) In its application for an order under this section, the enforcement authority must nominate a suitably qualified person for appointment as a receiver.
(5) Such a person may be a member of staff of the enforcement authority.
(6) The enforcement authority may apply a sum received by it under section 280(2) in making payment of the remuneration and expenses of a receiver appointed under this section.
(7) Subsection (6) does not apply in relation to the remuneration of the receiver if he is a member of the staff of the enforcement authority (but it does apply in relation to such remuneration if the receiver is a person providing services under arrangements made by the enforcement authority).
245FPowers of receivers appointed under section 245E(1) If the High Court appoints a receiver under section 245E on an application by an enforcement authority, the court may act under this section on the application of the authority.
(2) The court may by order authorise or require the receiver-
(a) to exercise any of the powers mentioned in paragraph 5 of Schedule 6 (management powers) in relation to any property in respect of which the receiver is appointed,(b) to take any other steps the court thinks appropriate in connection with the management of any such property (including securing the detention, custody or preservation of the property in order to manage it).(3) The court may by order require any person in respect of whose property the receiver is appointed-
(a) to bring the property to a place (in England and Wales or, as the case may be, Northern Ireland) specified by the receiver or to place it in the custody of the receiver (if, in either case, he is able to do so),(b) to do anything he is reasonably required to do by the receiver for the preservation of the property. (4) The court may by order require any person in respect of whose property the receiver is appointed to bring any documents relating to the property which are in his possession or control to a place (in England and Wales or, as the case may be, Northern Ireland) specified by the receiver or to place them in the custody of the receiver.
(5) In subsection (4) “document” means anything in which information of any description is recorded.
(6) Any prohibition on dealing with property imposed by a property freezing order does not prevent a person from complying with any requirements imposed by virtue of this section.
(a) the receiver deals with any property which is not property in respect of which he is appointed under section 245E, and(b) at the time he deals with the property he believes on reasonable grounds that he is entitled to do so by virtue of his appointment,the receiver is not liable to any person in respect of any loss or damage resulting from his dealing with the property except so far as the loss or damage is caused by his negligence.
245GSupervision of section 245E receiver and variations(1) Any of the following persons may at any time apply to the High Court for directions as to the exercise of the functions of a receiver appointed under section 245E-
(a) the receiver,(b) any party to the proceedings for the appointment of the receiver or the property freezing order concerned,(c) any person affected by any action taken by the receiver,(d) any person who may be affected by any action proposed to be taken by the receiver.(2) Before giving any directions under subsection (1), the court must give an opportunity to be heard to-
(a) the receiver,(b) the parties to the proceedings for the appointment of the receiver and for the property freezing order concerned,(c) any person who may be interested in the application under subsection (1). (3) The court may at any time vary or set aside the appointment of a receiver under section 245E, any order under section 245F or any directions under this section.
(4) Before exercising any power under subsection (3), the court must give an opportunity to be heard to-
(a) the receiver,(b) the parties to the proceedings for the appointment of the receiver, for the order under section 245F or, as the case may be, for the directions under this section,(c) the parties to the proceedings for the property freezing order concerned,(d) any person who may be affected by the court's decision.”(2) In sections 273(4)(b) and 277(7)(b) of that Act (recovery orders and consent orders: recovery of costs of pension scheme trustees or managers) after “enforcement authority,” insert “receiver appointed under section 245E,”.
(3) In paragraph 1 of Schedule 10 to that Act (disapplication of special income tax and capital gains tax rules for receivers), after paragraph (c), insert-
“(ca) a receiver appointed under section 245E;”.”
40: Insert the following new Clause-
“Powers for prosecutors to appear in cash recovery proceedings(1) After section 302 of the Proceeds of Crime Act 2002 (c. 29) (recovery of cash in summary proceedings: compensation) insert-
“302A Powers for prosecutors to appear in proceedings(1) The Director of Public Prosecutions or the Director of Public Prosecutions for Northern Ireland may appear for a constable in proceedings under this Chapter if the Director-
(a) is asked by, or on behalf of, a constable to do so, and(b) considers it appropriate to do so.(2) The Director of Revenue and Customs Prosecutions may appear for the Commissioners for Her Majesty's Revenue and Customs or an officer of Revenue and Customs in proceedings under this Chapter if the Director-
(a) is asked by, or on behalf of, the Commissioners for Her Majesty's Revenue and Customs or (as the case may be) an officer of Revenue and Customs to do so, and(b) considers it appropriate to do so.(3) The Directors may charge fees for the provision of services under this section.”
(2) After section 2C(3) of that Act (prosecuting authorities) (as inserted by Schedule 8 to this Act) insert-
“(3A) Subsection (3) does not apply to the functions of the Director of Public Prosecutions for Northern Ireland and the Director of Revenue and Customs Prosecutions under section 302A.”
(3) After section 38(1) of the Commissioners for Revenue and Customs Act 2005 (c. 11) (conduct of prosecutions on behalf of the Office) insert-
“(1A) An individual who is not a member of the Office may be appointed by the Director to appear in-
(a) specified proceedings, or(b) a specified class or description of proceedings,in which the Director or a Prosecutor would otherwise appear by virtue of section 302A of the Proceeds of Crime Act 2002 (c. 29) (cash recovery proceedings).”
(4) After section 39(1) of that Act (designation of non-legal staff) insert-
“(1A) The Director may designate a member of the Office to appear in-
(a) specified proceedings, or(b) a specified class or description of proceedings,in which the Director or a Prosecutor would otherwise appear by virtue of section 302A of the Proceeds of Crime Act 2002 (c. 29) (cash recovery proceedings).””
41: Insert the following new Clause-
“Disclosure of information by Revenue and Customs(1) This section applies to information held as mentioned in section 18(1) of the Commissioners for Revenue and Customs Act 2005 (c. 11) (confidentiality).
(2) Information to which this section applies may be disclosed by or with the authority of the Commissioners of Revenue and Customs-
(a) to the Criminal Assets Bureau in Ireland (“the CAB”) for the purpose of enabling or assisting the CAB to exercise any of its functions in connection with any matter within subsection (3); or(b) to any specified public authority (in the United Kingdom or elsewhere)-(i) for the purpose of enabling or assisting the public authority to exercise any of its functions in connection with any matter within subsection (3); or(ii) (if the specifying order so provides) for the purpose of enabling or assisting the public authority to exercise any of its functions in connection with any matter within that subsection that is specified, or of a description specified, in the order.(3) The matters within this subsection are-
(a) the identification of proceeds of crime;(b) the bringing of civil proceedings for enforcement purposes in relation to proceeds of crime; and(c) the taking of other action in relation to proceeds of crime.(4) Information disclosed in accordance with subsection (2) must not be further disclosed except-
(a) in connection with the exercise of any of the functions of the CAB or a specified public authority in connection with any matter within subsection (3) (or, in a subsection (2)(b)(ii) case, any such matter as is mentioned there); and(b) with the consent of the Commissioners of Revenue and Customs or an authorised officer of the Commissioners of Revenue and Customs.(5) For the purposes of this section any consent or authorisation may be general or specific.
(6) If a person in the United Kingdom discloses, in contravention of subsection (4), any revenue and customs information relating to a person whose identity-
(a) is specified in the disclosure; or(b) can be deduced from it;section 19 of the 2005 Act (wrongful disclosure) applies in relation to that disclosure as it applies in relation to a disclosure of such information in contravention of section 20(9) of that Act.
(7) Any reference in this section to a disclosure to the CAB or a specified public authority is a reference to a disclosure to such person, or to persons of such description, as may be specified in relation to the CAB or the public authority (as the case may be).
(8) Nothing in this section authorises any disclosure of information which-
(a) contravenes the Data Protection Act 1998 (c. 29); or(b) is prohibited by Part 1 of the Regulation of Investigatory Powers Act 2000 (c. 23).(9) In this section-
“the 2005 Act” means the Commissioners for Revenue and Customs Act 2005 (c. 11);“assets” means property of any description, wherever situated;“civil proceedings” means civil proceedings of whatever nature and whether brought in the United Kingdom or elsewhere;“Commissioners of Revenue and Customs” means the Commissioners for Her Majesty's Revenue and Customs; “enforcement purposes”, in relation to the proceeds of crime, means with a view to-(a) recovering, forfeiting or freezing assets constituting proceeds of crime; or(b) otherwise depriving persons (to any extent) of, or of access to, such assets or the benefit of such assets;“functions” includes powers, duties and objectives, and references to the exercise of functions include the pursuit of objectives;“proceeds of crime” means assets derived, or suspected to be derived, directly or indirectly from criminal conduct (wherever occurring);“public authority” means any body or person discharging functions of a public nature;“revenue and customs information relating to a person” has the meaning given by section 19(2) of the 2005 Act;“specified” means specified in an order made by the Treasury; and“the specifying order”, in relation to a specified public authority, means the order specifying the authority for the purposes of this section.”
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 38 to 41.
This is part of a larger group of technical amendments which, in the main, make further practical changes to the Proceeds of Crime Act. They are technical in nature, and they support the changes that the Bill had already made to the Proceeds of Crime Act before leaving this House on the first occasion in what my noble and learned friend Lady Scotland described as “good order”.
The main new provisions include providing for a purely management receiver to manage property subject to a freezing order in civil recovery. As this role will not be decisive on the outcome of the case, as it is strictly management, such a role does not need to be independent and could be taken by a member of the enforcement authority, such as the Serious Organised Crime Agency.
Other new provisions allow for the appointment of a receiver with the powers to manage and realise property ex parte to allow him to sell perishable goods in advance of other interested parties being heard. There is also a new power to allow for prosecutors to appear in civil cash proceedings under Chapter 3 of Part 5 of the Proceeds of Crime Act. The amendments also allow for the directors of the main prosecution agencies to delegate their civil recovery functions to members of their staff or to contract out such functions. These functions now include the ability to conduct a civil-recovery investigation in order to construct a civil-recovery case and for the disclosure of information to ensure that such investigations can proceed effectively.
Amendment No. 41 and other supporting amendments also enable HMRC to disclose information to the Irish Criminal Assets Bureau and other public authorities named in Treasury regulations, for the purposes of the civil recovery of the proceeds of crime.
I recommend the amendments to this House, although I am, of course, happy to address the detail of any of them if noble Lords would find that helpful.
Moved, that the House do agree with the Commons in their Amendments Nos. 38 to 41.—(Lord Bassam of Brighton.)
On Question, Motion agreed to.
42: Insert the following new Clause-
“Incidents involving serious violence: powers to stop and search(1) In section 60(1) of the Criminal Justice and Public Order Act 1994 (c. 33) (powers to authorise stop and search if reasonable belief that there may be incidents involving serious violence etc.), before the word “or” at the end of paragraph (a), insert-
“(aa) that-(i) an incident involving serious violence has taken place in England and Wales in his police area;(ii) a dangerous instrument or offensive weapon used in the incident is being carried in any locality in his police area by a person; and(iii) it is expedient to give an authorisation under this section to find the instrument or weapon;”.(2) In section 60(9) of that Act (authorisation must be in writing), at the beginning, insert “Subject to subsection (9ZA),”.
(3) After section 60(9) of that Act insert-
“(9ZA) An authorisation under subsection (1)(aa) need not be given in writing where it is not practicable to do so but any oral authorisation must state the matters which would otherwise have to be specified under subsection (9) and must be recorded in writing as soon as it is practicable to do so.”
(4) In section 60(9A) of that Act (application to British Transport Police)-
(a) after “place” insert “in England and Wales”; and(b) after “2003” insert “and as if the reference in subsection (1)(aa)(i) above to his police area were a reference to any place falling within section 31(1)(a) to (f) of the Act of 2003”. (5) In section 60(11) of that Act (definitions), in the definition of “offensive weapon”, after “1995” insert “; but in subsections (1)(aa), (4), (5) and (6) above and subsection (11A) below includes, in the case of an incident of the kind mentioned in subsection (1)(aa)(i) above, any article used in the incident to cause or threaten injury to any person or otherwise to intimidate”.
(6) In the heading to section 60 of that Act after “of” insert ”, or after,””
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 42.
This grouping concerns police powers of stop and search for dangerous instruments and offensive weapons. Amendment No. 42 extends the stop-and-search powers contained in the Criminal Justice and Public Order Act 1994. While the police have routine powers of stop and search in situations where they have a “reasonable suspicion” that a person is carrying certain items, Section 60 of the Criminal Justice and Public Order Act 1994 provides exceptional powers for the police to authorise the stopping and searching of persons and vehicles in a locality for knives and offensive weapons, which in England and Wales include firearms intended to be used to cause injury, without requiring reasonable suspicion.
Police may use this power when they believe that a serious violent incident is likely to take place or that persons are carrying weapons in the locality. This provides a preventive power which addresses situations where an anticipated incident has not yet happened or where public order is threatened by weapon-carrying en masse. The amendment adds a third scenario in which this power could be used—where a serious violent incident has taken place and the power would be useful in locating and taking out of circulation the weapon used in the incident and apprehending the perpetrator. While the existing preventive powers in Section 60 require written authorisation, the police will be able to make an authorisation orally to use this additional power to avoid any delay in the crucial moments following a violent incident. The effect of the amendment is to fill a small gap whereby the police are currently unable to use their Section 60 powers following a serious violent incident if they do not anticipate a further incident taking place or if there is no widespread carrying of weapons.
Knife and gun crimes are often isolated incidents and not followed by any further incident. The extension of the Section 60 powers covers this scenario and will allow the police to make full use of the powers quickly to locate the weapon, take it out of circulation and, it is to be hoped, to apprehend the offenders. The safeguards already contained in Section 60 relating to the rank of officer who may make the authorisation and its length will remain in force and will serve to ensure that this new extension to the powers will be used only in a way that is necessary and proportionate. I am sure noble Lords will agree that this extended power will provide the police with a useful additional tool in the fight against crime involving knives, guns and other weapons.
Amendment No. 52 provides that this new clause extends to England and Wales. We will work with the Scotland Office to consider how equivalent legislation should be taken forward in respect of firearms in Scotland, as the subject matter of the firearms Acts, including routine powers of stop and search for firearms, is reserved. However, policing of offensive weapons, including knives and bladed instruments, is devolved.
Amendment No. 174 amends the Long Title of the Bill to reflect the addition of this clause on stop and search powers. Amendment No. 43 removes Clause 78 from the Bill. The noble Lord, Lord Marlesford, has tabled Amendment No. 43A, which would disagree to that and would leave in Clause 78. Although I am unable to support Amendment No. 43A, I will allow the noble Lord to speak to it before explaining my reasons.
Moved, That the House do agree with the Commons in their Amendment No. 42.—(Lord West of Spithead.)
My Lords, I shall speak to my Amendment No. 43A, which is grouped with this series of amendments. Your Lordships will remember that the main objective of my original amendment, which was passed in this House earlier this year by a handsome majority, was very simple: to make it as risky as possible for anyone to carry an illegal firearm on the streets, primarily of our cities, but anywhere else for that matter. It was a simple amendment simply put forward. It was discussed a great deal in this House and I was delighted when it was passed.
I am sorry that the amendment was rejected by another place, although I understand why it was. However, I am glad that the Government have introduced their own amendment. Although it does not move much towards my amendment, it means that the Government have turned around and are at least facing in the same direction as I am. At a later stage, we shall have to try to make them take some steps forward, as further legislation is coming up.
What were the objections to my amendment? The first was that it was disproportionate. It focused entirely on giving the police the necessary powers to check for weapons in places and circumstances where they thought weapons might be. Checking for weapons meant, in this case, checking for a firearm. My amendment did not cover knives; it focused entirely on guns. There were two reasons for that. The first was that someone carrying an illegal gun is per se committing a serious offence, whereas someone carrying a knife may not necessarily be. Secondly, to search for guns is an easy technical process using metal detectors. Nobody in Britain would ever dream, if they had any sense at all, of trying to get on an aeroplane at Heathrow carrying an illegal gun. I want to make it as dangerous to carry an illegal gun on the streets of our cities as it would be at Heathrow. I will never get as far as that, but that is the clear objective.
The reason for my amendment is the amount of gun crime. In the summer months, when we were on holiday, there was a fresh outburst of gun crime, which everybody has been able to read about. There have been deplorable cases of young people shooting and killing one another. This morning, I came back from the United States, where there has been a great debate on who should be the candidates in the presidential election. Of course on one side it is pretty much a done deal; Mrs Clinton will be the Democrat candidate. However, all the eight or nine Republican candidates had a mammoth session this weekend arguing why they should be chosen. Interestingly, the one who seems to be ahead at the moment is Mayor Giuliani. Talking to Americans about his performance on this television marathon, I learnt that the main reason for his lead was that, in their view, he ran New York so well and turned it round from being a city of “look behind” to being a safe city. As your Lordships know, when you get into a cab in New York, you no longer have the armour plating between you and the cab driver. That shows that good political advantage is to be gained from dealing with a serious problem such as gun crime.
Returning today, my attention was drawn by a Member in the other place to a call by Mr Keith Jarrett, the president of the National Black Police Association. He will make a speech either today or in the next few days asking for more powers for random searching, particularly of black people, in order to get guns off the streets. He realises that people will say that that is provocative, but he says that the issue is too important not to follow that route.
The other argument used against the power to search for firearms is civil liberties. We are all sensitive to civil liberties but we have to be careful. By “we”, I mean those of us who sit on the leather Benches, whether they be red or green, in relative safety and comfort compared with the people whom we are trying to protect from the great dangers of gun crime. There is a risk that we will be, or will be perceived as being, somewhat self-indulgent if we say, “We know better, because the issue of civil liberties is the card which takes all with it. Perhaps more young people will be shot by each other in the streets but it is worth paying that price in order to say that the police cannot possibly infringe civil liberties”. I do not accept that argument. I believe that this is a case where we should give the police extra powers, and I honestly do not believe that they would be used disproportionately. Perhaps I may quote Mr Jarrett. He said that, as long as officers used the powers courteously and responsibly, many within the black community would accept it as a necessary evil. He added that the toll of shootings and knife crime meant that deep-seated misgivings over the policing strategy were being increasingly outweighed by fears over mounting violence. That is a powerful argument.
In Committee in the other place, interestingly my right honourable friend Mr Douglas Hogg spoke against my amendment on civil liberties grounds. I was rather amused by that because many years ago, when I was very young, I worked in the Conservative Party research department for the then Minister of Transport, Mr Ernest Marples, who was a great figure. He told me that he tried to introduce the compulsory wearing of seat belts but, when the idea came before the Cabinet, Mr Quintin Hogg, my right honourable friend’s father, argued vehemently on the grounds of civil liberties that such a measure should not be introduced. The Conservative Party then lost the 1964 election and it was left to Barbara Castle, the Labour Minister of Transport, to introduce the compulsory wearing of seat belts. I doubt whether anyone today would regard the wearing of seat belts as so great an infringement of civil liberties that it should not be made compulsory. We know that many people’s lives have been saved by wearing them. I would argue that, even if only one life were saved by the discovery of a gun, which could then be taken away without being used, that would justify my amendment. It would quickly become a deterrent. Rather like New York, if you catch people carrying illegal guns and deal with them severely then far fewer people will seek to carry them.
The new clause inserted by the Government’s amendment does at least face in the same direction as I am facing but it does not move very far. There appear to be three conditions before these additional powers of search can be used. The amendment says:
“(i) an incident involving serious violence has taken place in England and Wales in his police area;
(ii) a dangerous instrument or offensive weapon used in the incident is being carried in any locality in his police area by a person; and
(iii) it is expedient to give an authorisation under this section to find the instrument or weapon”.
First, do all three of those conditions have to be satisfied before the power to search can be used, or only one of them? If it is all three, it would be extremely difficult to justify using it. Secondly, what is the meaning of the phrase “in his police area”? How big an area are we talking about? Does it have to be a very small area, or quite a large area? If the weapon is thought to have moved to a different borough, can it be pursued?
Although this new clause is not a strong power, at least it makes the Government face the same direction as I and this House faced earlier this year. We shall almost certainly have another Home Office Bill next Session when I am sure that the House will want me to give us all—police forces and very senior police officers, who previously supported me—the opportunity to reinforce this amendment. The assistant commissioner of the Metropolitan Police, Mr Tarique Ghaffur, supported me in the summer. If we cannot make progress now, I hope that in the mean time there are not too many more murders because if there are people should have them on their consciences. Even I, who has advocated these powers of search so strongly, will feel that I have not done enough to prevent those murders.
My Lords, my noble friend Lord Marlesford has pursued this matter throughout the course of the Bill. I congratulate him on his tenacity in doing so. When I had the pleasure of meeting the noble Lord, Lord West, about a week ago, I came away with a great feeling that perhaps we would get somewhere at last for the noble Lord, Lord Marlesford. The noble Lord, Lord West, said—I hope I am not misquoting him—that the Government were at least sympathetic to the amendments and were considering how they could help.
In the interim, I believe someone has lost heart because, as the noble Lord, Lord Marlesford, has said, and as the noble Lord, Lord West, pointed out, the amendments affect a situation in which an offence has been committed or where an offence is anticipated. However, it does not enable the police to stop someone because they anticipate they might have gun on them. The trouble is that those who carry guns use them in an ad hoc way and probably not when the police expect them to do so. While I agree that the amendment moves us at a snail’s pace along the road that the House clearly wants to follow, which is to give the police a wider power to stop someone to see whether they are carrying a gun, I do not believe that they do that.
Nor do I think that the amendments do quite what my honourable friend James Brokenshire was looking for in the House of Commons with his amendment, which was to create a new right for police sergeants to authorise stop-and-search of pedestrians and vehicles in a specific area for a period of up to six hours. That would have brought down, within the hierarchy, the right of police to stop. That amendment has the support of the Police Federation and would have provided communities with greater protection as, indeed, would the amendment of the noble Lord, Lord Marlesford.
It is six of this and half a dozen of that with this amendment. I am grateful to the noble Lord for having listened—because I know that he has—and perhaps he has himself managed to inch us along this path. I am sure that my noble friend Lord Marlesford will not leave this alone: he will come back at a later stage to try to harden up the Government’s determination on this. In the mean time, I support him and thank him on behalf of the House and a lot of people, for his efforts, particularly in coming back from America; I am not sure whether he was meaning to come back for today, but he has.
My Lords, from these Benches I also congratulate the noble Lord, Lord Marlesford, on his fight to widen the security and safety of the ordinary citizen. His original amendment, which we supported, has the great benefit of simplicity; he managed to encapsulate in short order all the necessary ingredients. We also congratulate him for clearly having pushed the Government along the road to a certain degree. We on these Benches are, for the moment, happy with the position that the Government have reached due to his efforts.
The noble Lord would not expect me to follow him on civil liberties. The problem with criminals who engage in violent behaviour is that they have lost respect for other people and themselves. It is a great problem to try to rebuild that respect and inculcate a sense of self-respect in the individual. Our view is that the best way of doing that is recognising that every person, from whatever background he comes and whatever his disadvantages, is entitled to fundamental human rights. If he is in trouble, he is entitled to the right to a fair trial and the fair process of the law. That is fundamental to us. We feel that if those principles are followed and civil liberties and human rights are recognised and put in the forefront, there is a chance that the person who has gone astray will eventually learn respect for others and self-respect. That is why we on these Benches pursue those principles with all the fervour we can.
My Lords, I hope that I am not gravely out of order—and would certainly never normally dream of following the noble Lord, Lord Thomas of Gresford—but I would be grateful if the Minister could clarify two points that he referred to in his remarks. The first was the timing of the authorisation of the stopping and searching of a particular area at a particular time under particular circumstances. I hope that the measures he spelt out so clearly will be effective and that all the rough edges have been removed.
Secondly, years ago, I had the opportunity of promoting legislation in your Lordships’ House referring to the carrying of knives in Scotland. This was directed at a particular area at a particular time and in what I might call a particular climate. The tiny Bill—now an Act—that I was involved in certainly has been reasonably successful. Can the Minister write to me at some stage about the carrying of knives? They can be other than offensive weapons, as mentioned by my noble friend Lord Marlesford.
My Lords, I shall address some of the points that were raised. First, I thank the noble Lord, Lord Marlesford, for his contribution to the debate. It has been extremely valuable and has made us look again at the issue. We talked to ACPO about the various measures and spoke to the lead officer on the criminal use of firearms and the lead officer on the stop-and-search policy. Both of them were unhappy with the new powers that would be provided in the noble Lord’s amendment, but they felt that our new amendment was particularly valuable. They felt that it was moving things in the right way.
The noble Lord asked whether all three conditions had to be met if this measure were to be enacted. The answer is yes, that is the case. In terms of the locality and the size of the area, that is affected by a Section 60 authorisation. It is an operational matter for the police and is covered in guidance in the PACE code A for guidance. I shall send the noble Lord details and ensure that the noble Baroness, Lady Hanham, receives a copy. It is clearly laid out and specified. So, for example, when the transport police use that power, the location might be a railway station and the search would be conducted in the surrounding streets.
The noble Baroness, Lady Hanham, asked in particular about stop-and-search. Under Section 47 of the Firearms Act, we can stop and search if there is reason to believe that someone is carrying a weapon. That issue is therefore already covered.
The noble Lord, Lord Lyell, asked a couple of questions, one of which related to the length of time applicable. At present, under Section 60 an inspector must implement the measure. The initial authorisation is for 24 hours, but there can then be an extension only by a superintendent for another 24 hours. The absolute maximum is 48 hours. Perhaps I may write to the noble Lord on his other question. Part of the reason for the slight delay was negotiations with the Scottish Office because there were complications about devolved and other powers relating to firearms and knives.
Amendment No. 43A would reverse the decision of another place to remove Clause 78 from the Bill. Clause 78 was incorporated into the Bill in this House as an amendment tabled by the noble Lord, Lord Marlesford, and introduces powers for the police to seal off areas to search for firearms. A considerable amount of time has been spent debating this matter both in this House and in another place, and in my view the arguments are well rehearsed. We remain concerned about the total lack of safeguards in the provision and we remain convinced that this clause is both unnecessary and potentially dangerous. This does not mean that we do not agree with the noble Lord, Lord Marlesford, that gun crime is very serious. Indeed, we also looked at the incidents this summer, which were very unfortunate. We agree that it is a serious matter.
The clause provides a power for any constable on his own authority, and without consulting or informing a more senior officer, to seal off an area where he believes persons may be carrying firearms, although it does not specify by what means the area would be sealed off. Within that area, he may then search persons or vehicles for firearms by whatever means he considers appropriate. Again, there is no indication by what is meant by “whatever means he considers appropriate”. This is a concern because it seems to imply a cavalier approach to stopping and searching that goes against the robust protocols and guidelines that have been developed. The noble Lord, Lord Thomas of Gresford, touched on some of the issues connected with civil liberties.
The purpose of this extensive guidance is to ensure that any stop-and-search power is exercised fairly and proportionately in a way that does not undermine community confidence in the police. Furthermore, the clause does not specify any limits on the duration of time for which the power may be exercised or any requirement that the authorisation to use the power must be formally reviewed and extended to continue to operate. Taken together, these concerns lead me to the view that this is a reckless and unnecessary provision that could disproportionately affect certain communities, threaten community cohesion and lead to public disorder. That view was shared by all sides of the House in another place when the matter was debated in Committee. Concerns were raised about the scope and ambit of the clause as drafted and about the likely impact on civil liberties, and the clause was disagreed to without a vote.
We have since given the matter some further consideration, have taken on board the concerns that we all share about weapon-enabled crime and have added the new clause that I have already described. It will extend police powers to stop and search for weapons in a way that is more measured and proportionate and will address, to a degree, the purpose envisaged by the noble Lord, Lord Marlesford. The other place agreed to the insertion of this clause, and I hope that noble Lords will also be persuaded of its worth. Therefore, while I have the greatest respect and admiration for the noble Lord and am grateful for the contribution he has made to the debate in this important area, I respectfully ask that he does not move his amendment in view of the concerns expressed by me and others and in the light of the new clause inserted by Amendment No. 42.
On Question, Motion agreed to.
43: Leave out Clause 78
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 43.
Moved, That the House do agree with the Commons in their Amendment No. 43.—(Lord West of Spithead.)
[Amendment No. 43A not moved.]
On Question, Motion agreed to.
44: Page 43, line 18, after “Secretary of State”, insert “, the Treasury”
49: Page 43, line 34, after “33,”, insert “(Costs in relation to authorised monitors)”
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 49.
Moved, That the House do agree with the Commons in their Amendment No. 49.—(Lord West of Spithead.)
[Amendment No. 49A not moved.]
On Question, Motion agreed to.
50: Page 43, line 34, leave out “or 63” and insert “, 63 or (Disclosure of information by Revenue and Customs)”
61: Page 48, line 25, at end insert-
“Armed robbery etc.4A(1) An offence under section 8(1) of the Theft Act 1968 (c. 60) (robbery) where the use or threat of force involves a firearm, an imitation firearm or an offensive weapon.
(2) An offence at common law of an assault with intent to rob where the assault involves a firearm, imitation firearm or an offensive weapon.
(3) In this paragraph-
“firearm” has the meaning given by section 57(1) of the Firearms Act 1968 (c. 27);“limitation firearm“ has the meaning given by section 57(4) of that Act;“offensive weapon” means any weapon to which section 141 of the Criminal Justice Act 1988 (c. 33) (offensive weapons) applies."
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 61. These offences were included in the Schedule during the passage of the Bill through another place in response to a commitment made by the Attorney-General in her previous role. We are grateful to the noble Baroness, Lady Anelay, who suggested that we look at including the concept of armed robbery within the schedule. Having looked at how best to achieve that, Vernon Coaker brought forward this amendment in another place, and I hope that this House feels able to accept it.
Moved, That the House do agree with the Commons in their Amendment No. 61.—(Lord West of Spithead.)
My Lords, my noble friend Lady Anelay obviously made a great impact in many ways, but particularly on this aspect of the Bill. She is grateful, as are we, that there is now a proper definition of armed robbery—which, I understand, has not been defined before—on the statute book. She is pleased to see it there, and I am glad on her behalf.
On Question, Motion agreed to.
62: Page 48, line 27, leave out “either” and insert “any”
155: Page 116, line 32, after “Customs”, insert “who is a senior official within the meaning of the Regulation of Investigatory Powers Act 2000 and who is”
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 155 to 159. These minor and technical amendments make it clear that only senior HMRC officials can authorise the use of intrusive surveillance powers. The amendments were made in response to opposition concerns. The Government were asked whether it could be made clearer precisely who is mandated by the provisions. A similar concern was raised when your Lordships considered the provision. As my noble and learned friend Lady Scotland said, we think that sufficient internal and external safeguards on the use of these powers exist, but the Government recognise that the internal safeguards are not obvious in the legislation. It is important that there is public confidence in the use of these intrusive powers. The amendments were made in response to ongoing concerns.
Moved, That the House do agree with the Commons in their Amendments Nos. 155 to 159.—(Lord West of Spithead.)
On Question, Motion agreed to.
160: Leave out Schedule 13