Mr. Carmichael: I have noted down beside the three Conservative amendments, ''No'', ''Yes'' and ''Partly''.
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Mr. Hawkins: The hon. Gentleman seems to have encapsulated in one sentence the whole history of his party's approach to matters in Parliament.
Mr. Carmichael: I shall not favour the Committee with my views on what the hon. Gentleman thinks about my party, fun though that might be. Amendment No. 452 would be unduly and unworkably restrictive in requiring the involvement of a higher judicial authority in every instance. However, I am not persuaded that it would be either necessary or desirable to involve senior officers of the police or Customs and Excise, as the Government appear to wish to do in relation to subsection (2). I am aware that that practice has been prevalent south of the border as a result of the Police and Criminal Evidence Act 1984. There are others here better qualified than I am to comment on whether that has worked well. However, it has not hitherto been a feature of the Scottish criminal justice system and I can see no particular merit in introducing it in this way.
Amendment No. 408, which restricts the definition of appropriate approval to that granted by a judicial officer, has considerable force. In passing, I wondered why the definition of a judicial officer in England, Wales and Northern Ireland included a justice of the peace, whereas in Scotland it was restricted to a sheriff. The practice in the Scottish criminal justice system at present is to seek warrants from a justice of the peace whenever possible, rather than to go through the sheriff.
The practice until two or three years ago was that warrant applications, which, broadly, is what we are discussing, would normally be dealt with by a sheriff, and only in exceptional circumstances by a justice of the peace. However, because of the volume of work involved, things have now gone the other way. Warrant applications are now routinely made to justices of the peace, and only for the most serious cases are they made to the sheriff. I would be interested to know what the Government's thinking on that is.
If one does not accept Amendment No. 452, certain parts of amendment No. 409 become unnecessary. The inclusion in subsection (9) of the provisions regarding the appointed person is a necessary and welcome safeguard.
Mr. Ainsworth: May I clarify the positionalthough I am not sure about the involvement of the sheriff, and I may return to the hon. Gentleman on that matter.
The hon. Gentleman seemed to suggest that the involvement of a senior officer was an undesirable step that should not be taken, because he did not want the prior approval of such an officer to be considered relevant. I do not know whether I misunderstood him, but people are not relieved from the necessity for post-approval just because a senior officer has been involved. It is a secondary step, which is meant to ensure that the powers are not used unnecessarily by junior customs officers or constables on the street. If the prior approval of a senior officer is gained, and the case goes to court and is effectively given judicial approval within the 48 hours, or if the case is reported
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to the appointed person, the fact that the senior officer was involved prior to the seizure does not preclude the requirement to give a report afterwards. It is an additional safeguard; it does not remove the further safeguard that comes after a case.
Mr. Grieve: The Minister has put forward a cogent and sensible argument. Although I have an anxiety about the exercise of the power other than by judicial authority, I am reassured by the reporting procedure that will allow Parliament to monitor the use of that power. Slightly reluctantly, I am prepared to concede that circumstances might arise in which it may be difficult to get judicial authorisation, and that that would justify the power being authorised by a senior officer, so I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments made: No. 443, in page 168, line 13, after 'Commissioners' insert 'of Customs and Excise'.
No. 323, in page 168, line 22, after first 'the', insert 'customs'.[Mr. Bob Ainsworth.]
Clause 289, as amended, ordered to stand part of the Bill.
Report on exercise of powers
Mr. Bob Ainsworth: I beg to move amendment No. 324, in page 169, line 2, leave out from 'exercised' to end of line 3 and insert
'in cases where the customs officer or constable who exercised them is required to give a report under section 289(6)'.
The amendment is proposed in order to achieve a more accurate consistency between clauses 290 and 289. Clause 289 requires a customs officer or constable who carries out a search for tainted cash under clause 288 to give a written report to an independent person, who is to be appointed for this purpose by the Secretary of State or Scottish Ministers. Such reports must be made when an officer or constable has exercised the power of search without obtaining judicial prior approval and the case has not proceeded to a judicial detention hearing under clause 294.
Clause 290 requires the appointed person to make an annual report on how the search power is being used. Subsection (2) at present requires him to report on all searches carried out without prior judicial approval, even though, under the provisions of clause 289, only some of these searches have to be reported to him. However, it is obvious that the appointed person can report only on the cases that are reported to him. Amendment no. 324 therefore makes clear that the appointed person's annual report should be concerned with the use of the search power only in those cases.
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Mr. Hawkins: I do not think that I need to say much, but I shall paraphrase what I believe to be the reasons for the Government's change of mind. It seems that they want to make clearer in subsection (2) the link with clause 289(6), and only with that provision. If I understood the Minister correctly, the change would be a helpful clarification and we have no concerns about it. Am I right that that is what he wants to achieve?
Mr. Ainsworth: I thought that I had made the position clear. That is certainly our intention.
Mr. Wilshire: I wonder, Mr. Gale, whether you would prefer general observations to be made during our debate on the amendment, or whether you would rather have a clause stand part debate?
The Chairman: It would probably be better to have a brief clause stand part debate , if one is wanted.
Amendment agreed to.
Question proposed, That the clause, as amended, stand part of the Bill.
Mr. Wilshire: I should be grateful if the Minister would say what sort of person that independent person should be, and what sort of selection process would lead to the point at which names were put to the Secretary of State. I am sure that others will be asked to go through the suggested names, rather than the Secretary of State having to do it himself. That is an important matter. The Minister used the phrase ''independent person'' but I believe that that person should be absolutely and transparently independent. Some guidance might reassure us on whether this is the right way to go. What sort of person are we talking about, and how will the selection process work?
When speaking to the amendment, the Minister said that it would be up to the independent person to say whether he was satisfied about the cases that were brought to his attention. What would happen if he found an explanation so poor that it was insupportable? Does the Minister intend to give the independent person powers to deal with individual abuses? I share the view expressed by my hon. Friend the Member for Beaconsfield that, with the best will in the world, such a power will sooner or later be misused, even if not deliberately, and that some sort of injustice could easily result. Will the independent person have the power to do anything about serious abuses of that sort? If he is to have that power, where are the provisions to be found that would allow some redress?
At the end of the year, the independent person has to make a general report. Will he be able to make recommendations in that report, or will it be a simple factual report of what had happened during the year in question? Such reports will be of use to Parliament only if conclusions are drawn and recommendations made.
The Bill says that the report should be laid before Parliament, but is it the Minister's intention that Parliament should be given the chance to debate it and,
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if necessary, vote on it? If changes are needed, will the Minister undertake to make amendments so that the power cannot be abused in future years?
Mr. Hawkins: I echo my hon. Friend's comments. Our amendment No. 410 was not selected, for the obvious reason that it seeks to delete the whole of the clause, but my hon. Friend has set out the reasons why it was tabled. It would have given us the chance to explore the need to allow proper consideration of the appointment of the independent person. It would have probed the whole question of who should be appointed, how that would be decided and by whom. Clearly, it is a good idea to have independent scrutiny of how the policy is working. We have no objection to that, but the tabling of such a ''probing deletion'' is a way of finding out how the system will work, who the person will be and how he or she will be appointed. I hope that the Under-Secretary will satisfy our concerns about such important issues and explain in detail what the Government have in mind.
I also hope that the Government may incorporate into the Bill some of what I anticipate that the hon. Gentleman will say. One of our misgivings about clause 290 is that it does not set out how independent people are chosen and appointed, as other recent Acts of Parliament have outlined. Although the Bill is large, I believe that it would benefit if the clause clarified such provisions further. Even if the Under-Secretary cannot provide us with an explanation today, I hope that the Government will consider tabling an amendment on Report or in another place.