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Standing Committee B
Tuesday 29 January 2002
[Mr. Roger Gale in the Chair]
The Chairman: Good afternoon. It might be helpful if I remind the Committee that, in accordance with the amendment to the programme order agreed this morning, all questions necessary to dispose of proceedings on part 8 of the Bill will be put at 6 o'clock this evening, and all questions necessary to dispose of proceedings on part 9 of the Bill will be put before half-past 7 this evening. I say before, rather than at, half-past 7, because this Chairman does not sit past 7 o'clock without a break. I am prepared to suspend the sitting at 7 o'clock and sit again at half-past 8, but I am not prepared to have the staff of the House kept sitting for more than two and a half hours in one go. I tell you that now in order to concentrate minds.
Amendment proposed [this day]: No. 556, in page 200, line 38, at end insert—
'or a civil recovery investigation'.—[Mr. Grieve.]
Question again proposed, That the amendment be made.
The Chairman: I remind the Committee that with this we are taking amendment No. 557, in page 200, line 42, leave out from 'investigation' to the end of line 3 on page 201.
Mr. Dominic Grieve (Beaconsfield): When I was cut off at 1 o'clock, I was about to withdraw my amendment. As I was not able to do it then, I now beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. Grieve: I beg to move amendment No. 558, in page 201, line 8, leave out 'or at once'.
The amendment, which, like the previous group, relates to disclosure orders, would affect subsection (4), which says:
A disclosure order is an order authorising the Director to give to any person the Director considers has relevant information notice in writing requiring him to do, with respect to any matter relevant to the investigation for the purposes of which the order is sought, any or all of the following—
(a) answer questions, either at a time specified in the notice or at once, at a place so specified.
The Minister will see that my amendment would delete the words ''or at once''. [Interruption.] I am glad that the Minister can confirm that. As with so many things, I was trying to put my amendment in context.
I wonder whether those words are not a little over the top. I should be grateful to learn why it is felt necessary to include them, especially as there is a right of appeal to the court. It is difficult for someone to use
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that if he is told that if he does not do something at once, he is guilty of a criminal offence.
Norman Baker (Lewes): Will the hon. Gentleman reflect on the fact that although it may be difficult to answer questions ''at once'', as it says in subsection (4)(a), it is even more difficult to produce documents ''at once'', as subsection (4)(c) demands?
Mr. Grieve: The hon. Gentleman makes a good point. I decided to highlight the first use of the phrase so that we could discuss the subject, as has been my practice in the past in Committee. Will the Minister explain why that phrase is needed? He could also say whether there is an origin for that power, or whether the words ''at once'' are novel among such orders. That would help the Committee to consider whether there is a precedent. I am fully aware of how useful disclosure orders can be, but I find it difficult to find a justification for saying, ''Answer this now.'' I would normally expect someone at least to have the opportunity of getting legal advice, which often rapidly leads to responses to previously unanswered questions.
The Parliamentary Under-Secretary of State for the Home Department (Mr. Bob Ainsworth): We have been in Committee for a few months, and we have got to know each other so well that I am not the slightest bit surprised that the hon. Gentleman expects us to object to someone doing anything at once—or quickly, or forthwith, or now. To do something at once is more than we might expect from the hon. Gentleman's character, as he has shown so well in Committee.
The amendment would mean that the director of the agency would not be able to conduct an interview with an individual under the disclosure order with immediate effect. He would have to arrange for the interview to be held at some stage in the future. The disclosure order power is modelled closely on the power under the Proceeds of Crime (Northern Ireland) Order 1996. That allows the power to be exercised by notice in writing and specifies where, and at what time, the interview is to take place, which may be immediately.
If the director considers that the person whom he wishes to interview already has the knowledge to answer the questions, there is no need for delay. A member of the agency, armed with the authorised notice under the clause, could visit a person who is considered to have relevant information and compel him to answer questions there and then.
The hon. Member for Beaconsfield (Mr. Grieve) referred to a person's rights. There is certainly a right to be legally represented, and that could be seen as clashing with the requirement to deal with the matter immediately. I have asked my officials to check with their colleagues in the Northern Ireland Office on how the provision operates in the Province.
Paragraph 8 of schedule 2 of the Proceeds of Crime (Northern Ireland) Order enables the Secretary of State to draw up a code of practice in connection with the exercise of financial investigations under the powers conferred by that schedule. The code provides information about the operation of a disclosure order in Northern Ireland, and says that a
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person should be interviewed in private, and should be permitted to be legally represented, if he asks. The wording in the Bill differs from the code, but there is no difference in substance. We do not believe that there is a substantive difference between ''forthwith'' and ''at once''.
When it is believed that a person has information already in his possession, he should be required to render it. He has the right to be legally represented, and that cannot be cut across by such a requirement.
Mr. Paul Stinchcombe (Wellingborough): I seek the Minister's assistance. Under the Bill, it would have to be known where the person would be when he was confronted with the order, so that he could answer the questions
either at a time specified in the notice or at once, at a place so specified.
Difficulties could arise if no one knew where the person might be, or if he had moved location by the time that he was contacted. How will that be dealt with in practice? Will it be possible for a notice to be drafted in the alternative?
Mr. Ainsworth: Yes, and I think that the clause provides for a specified time. If it were not known where the person was and whether he had the information to hand, it would be appropriate to specify a time when the information was required. I am talking about someone whose whereabouts are known, and it is felt that he has the information and there is no reasonable excuse for his withholding it. Notwithstanding the fact that a person has a right to legal representation, the director has the power under the Bill to insist on the information being rendered immediately. Different circumstances will lead to different requirements under the order.
Norman Baker: I wish to be clear about the legal representation. Can people access legal advice before being required to answer questions ''at once'', or are they expected to answer questions at once and then seek legal advice?
Mr. Ainsworth: I am told that the provision operates without difficulty in Northern Ireland. It is governed by a code, in which such issues have to be covered. The requirement to answer questions immediately cannot cut across the right to legal representation, and it does not do so.
Mr. Grieve: This has been an interesting discussion, especially now I realise that the provision has a Northern Ireland derivation. Northern Ireland is perhaps not the best place to go to find well drafted legislation, usually because legislation has been drafted on the basis of wanting to suppress terrorism, which is understandable, but sometimes leads to infelicities of wording.
As the Minister says, ''at once'' does not actually mean at once. The rules would be drafted so as to allow people the necessary time, which is exactly what I expected the Minister to say—so I wonder whether the phrase ''at once'' is necessary at all. As the Minister suggested that he would consult his officials, I
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am not minded to press the amendment to a Division, but I hope that in doing so he will find out whether happier drafting might be arrived at, which would provide all the powers that he wants without including rather stentorian commands that the provision does not really mean. Once that drafting is in the statute, at some point someone will say, ''Either you answer this moment, immediately, or you are for the high jump.'' That is simply undesirable.
Mr. Ainsworth: Is the hon. Gentleman really arguing that in no circumstances should there be a requirement for an immediate answer? That is effectively what he is saying. In some circumstances—plucking them out of the air is rather difficult—with meetings due to take place and legal representatives present, when information was felt to be in the person's knowledge, the director would not be able to require its disclosure until a later date. That is a recipe for allowing people to hide the information required, and thus to avoid the powers in the Bill.
Mr. Grieve: If an arrangement has been arrived at whereby someone has been asked to attend at a police station, that person is unlikely to be under arrest. Indeed, it is likely that the person involved would be not the principal target of the civil recovery or confiscation procedures, but merely someone who was, or was believed to be, connected, and who might be able to provide useful information. The mere fact that he has been invited to attend is, I should have thought, likely to put him on notice about the nature of the questions that he will be asked. If he has been lulled or lured into a police station or another place under false pretences, it would be unfair for someone to turn up and say, ''Oh goody—you've got your solicitor here, so you've got all you need. Here's a notice: start answering our questions now on this topic.'' I would still expect a period to be provided, even if it were short—say, 30 minutes—before that person legally had to provide those answers. The use of the phrase ''at once'' therefore strikes me as odd.
I do not know what is intended. I would have expected the notice to contain words to the effect of, ''Notice is served on you that at 6 pm tomorrow you will have to answer questions.'' I have no problem with that. Perhaps the wording is intended to mean, ''At 6 pm tomorrow, or as soon as we can lay our hands on you.'' I do not think that that is what the Minister intends, which is why I say that in view of the regulations that he wants to draw up, the words ''at once'' are, to use an old lawyers' word, otiose. If the words are not otiose, and it is true that the Minister intends to confront individuals and say, ''In this particular circumstance, we will not give you the option of a time or any notice, and you will answer the questions now,'' that is wrong. I hope that he will reconsider the matter.