Mr. Ainsworth: As I said, a code of practice currently operates in Northern Ireland. In all probability, we will require that to be used here, to dictate how the director performs his business. I will consider the points that the hon. Gentleman thinks must be covered by the code.
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Mr. Grieve: What I have said applies with equal force to the production of documents, although in a funny way, I am less worried about that. I am worried about putting a person on the spot and requiring them to answer questions without the prior chance to get legal advice and take preliminary steps. The words ''at once'' imply that that would happen, yet the Minister has conceded that it is not expected to happen. It would be wise to bring the reality of what is intended and the words in the Bill together.
Vera Baird (Redcar): I wonder whether there is an answer to the hon. Gentleman's earlier point about the interplay between the requirement for a disclosure at once, and the right of appeal. What would happen if the legal adviser arrived and advised that the document was not proper and should be appealed?
Mr. Grieve: I agree with the hon. Lady. As there is a requirement, the offence would be committed immediately. That is extremely undesirable. This situation has not been focused on, and I wonder whether it was focused on in the Northern Ireland legislation.
I am tempted to press the amendment to a vote, but for once, I am prepared to give the Minister the benefit of the doubt. However, I would like a reply that sets out the full position before Report, because I shall undoubtedly return to it then, time permitting—heaven knows, we are going to be pretty pressed for time on Report, depending on how many days the Government allocate.
I do not have all the facts. The Minister may have facts with which he can persuade me so, unusually, I shall not press the amendment. However, there is an important issue here, because apart from anything else, magic words appear on the front of the Bill about conformity with the European convention on human rights. I cannot help thinking that this little bit of the Bill may not conform. Even if we retain the provision, it might not be to the Government's advantage. Northern Ireland legislation is riddled with examples of the Human Rights Act 1998 and the convention being gently sidelined.
Mr. Ainsworth: I do not disagree with the hon. Gentleman, in that we must ensure that we understand exactly how the wording in the clause fits in with a required code of conduct and an individual's rights. That must be explained to the hon. Gentleman and other members of the Committee, and we will try to do that.
Mr. Grieve: I am grateful to the Minister. In the spirit of general conciliation, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 346 ordered to stand part of the Bill.
Requirements for making of disclosure order
Norman Baker: I beg to move amendment No. 552, in page 201, line 30, at end add—
'(4) In deciding whether information which may be provided is of substantial value, the court must be satisfied that the information is directly connected to determining whether someone is in possession
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of recoverable property and to any offence through which that property was obtained.'.
You were not here this morning, Mr. Gale, when we had a discussion about the relationship between the Bill and the Human Rights Act 1998. I fear that I may have to refer to that in passing, because I am worried about the clause's compatibility with the terms of that Act.
This morning, the hon. Member for Beaconsfield moved an amendment because he was worried that disclosure orders should not apply in cases of civil recovery investigations. The amendment was not incorporated in the Bill, although I cannot remember whether it was put to a vote. The Minister replied that the provision had to be in the Bill, and that if it were removed, that would leave a big hole. He said that such matters would be best addressed by considering the safeguards—or lack of them—in clause 347.
That brings me to amendment No. 552. I wish to remind the Committee that both the Minister and the explanatory notes concede that disclosure orders are ''intrusive''. It appears that the Government are concerned that the power should be exercised sparingly, and with proper attention to safeguards. The purpose of the amendment is to strengthen those safeguards.
I have mentioned the human rights legislation, and I want the Minister to place on the record his view about the compatibility of the clause, as it is currently drafted, with, in particular, a person's rights under article 8 and article 6.2 of the convention—not least because clause 348 makes failure to provide information to the state into a criminal offence.
I accept that such requirements are not brand new. Disclosure orders can be issued in company and financial investigations, and that is considered acceptable. However, that is a narrow and specific investigative field, in which such orders are justified on the basis of proportionality, particularly in the light of the need to regulate financial services—a subject that will interest the hon. Member for Glasgow, Pollok (Mr. Davidson).
There is a difference between that narrow application and the much wider application that subsection (3) would permit if the amendment were not accepted. The application of that power might be justifiable with regard to, for example, a requirement in company and financial law to deal with the detection of corporate offences, and to the position of a person who might be involved in that, such as a company director. However, under the clause—especially the requirement under subsection (2)(b)—the power could have a very wide application that would cover an almost limitless number of offences, including potentially trivial matters. Therefore, the potential scope for abuse of the provision is significant. That represents a real danger. It is important to remind the Committee that, as the Government admit, the clause introduces intrusive powers.
I presume that the Minister will refer to subsection (3), which states:
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There must be reasonable grounds for believing that information which may be provided in compliance with a requirement imposed under the order is likely to be of substantial value.
Although I welcome that safeguard, it focuses on the order's value to an investigation. A disclosure order should also be shown to have a rationale, or connection, with regard to its aims, so it should focus on the property.
Mr. Stinchcombe: Does the hon. Gentleman not feel that the clause already contains the focus for which he is arguing? It requires that information required under the order
is likely to be of substantial value . . . to the investigation for the purposes of which the order is sought.
Norman Baker: I agree that the words
for the purposes of which the order is sought
The hon. Gentleman appears to be implying that my amendment is unnecessary. If that is the case, he will have no objection to the words that I have added. As the Minister and the Government accept that the clause introduces an intrusive power, it would be prudent to adopt the belt-and-braces approach that the amendment proposes.
Amendment No. 552 would add a new subsection (4), which would state:
In deciding whether information which may be provided is of substantial value, the court must be satisfied that the information is directly connected to determining whether someone is in possession of recoverable property and to any offence through which that property was obtained.
Under the clause, disclosure orders could be used to obtain general background information about the movements and activities of suspected persons or suspected property, but that is not a sufficient reason to justify an intrusive clause. Other powers are open to the Government if they wish to secure information about suspected persons or suspected property movement. They have powers under the Police Act 1997 and under the Regulation of Investigatory Powers Act 2000, and in some ways those tests are harder. If the Government want to go beyond the narrow issue that links a person with property, the test should be harder. The test is in law already, and the Government can avail themselves of such powers under the two Acts that I have mentioned. That is a more appropriate way forward, and I hope that the Minister will have some sympathy with my argument.
Mr. Nick Hawkins (Surrey Heath): It is not often, even in this Committee, that a Conservative Member—particularly one on the Front bench—supports a Liberal Democrat amendment. I now find myself in that position—with one slight refinement. I would have been happier if the amendment moved by the hon. Member for Lewes (Norman Baker) had said that the court must be ''satisfied, so that it is sure''. In recent years, that has been the usual replacement in English law for ''beyond reasonable doubt''.
Would the hon. Gentleman have been happy if my hon. Friend the Member for Beaconsfield and I had added ''satisfied, so that it is sure''? [Interruption]—I
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see that he is helpfully agreeing. I am grateful for that, because it confirms the decision made by my hon. Friend the Member for Beaconsfield and myself. We did not think that it was worth while proposing a further amendment simply to add those words, because we believed that the issues would be sufficiently debated when discussing the amendment that the hon. Member for Lewes and his colleagues had tabled. I strongly believe that those words would add a further safeguard, and I agree with what the hon. Gentleman said.
We need to see that the information is directly connected to determining whether a person is in possession of recoverable property and if he is linked to any offence through which that property was obtained. Even the zealots on the Government Back Benches—led, as always, by the hon. Member for Glasgow, Pollok—will realise that the amendment is not an attempt by the Liberal Democrats to water down the Bill. It is not only a helpful safeguard, but a useful clarification. I hope that the Minister will accept the amendment, even if he does not agree completely with the suggested words. He may even prefer my refinement of them—but perhaps that is too much to hope for.
Ministers have been very helpful today, and have already accepted another Grieve/Hawkins amendment. Perhaps the Government will also say that, on reflection, Opposition members of the Committee—whether Liberal Democrat or Conservative—have a good point. I certainly hope so. I will listen with interest to what the Minister says. The hon. Member for Lewes may be right to predict that the Minister will talk about the other subsections that would appear before suggested new subsection (4), but on this occasion, I strongly support the thrust of the hon. Gentleman's amendment.