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Standing Committee B
Thursday 31 January 2002
[Mr. Roger Gale in the Chair]
Use of information by director
Question proposed, That the clause stand part of the Bill.
Mr. Dominic Grieve (Beaconsfield): We have tabled many amendments to the clause, almost all of which probe into how it is expected to work. The clause states:
Information obtained by or on behalf of the Director in connection with the exercise of any of his functions may be used by him in connection with his exercise of any of his other functions.
That is a strange statement. I think that I understand it, but will the Minister clarify it for the Committee?
Mr. Nick Hawkins (Surrey Heath): When I looked at the clause, I was reminded of the excellent destruction by my hon. Friend the Member for Henley (Mr. Johnson) of a regional development agency job advertisement in The Daily Telegraph this morning. The clause contains similar gobbledegook for the layman. Anything that is as circular in its phraseology has no place in legislation.
The Parliamentary Under-Secretary of State for the Home Department (Mr. Bob Ainsworth): That all circularity should be removed from legislation is a revolutionary thought. I have discussed enough Bills to know that that would have a profound, far-reaching effect. The wording of advertisements designed for the public is different from that used in legislation.
Mr. Paul Stinchcombe (Wellingborough): I am struggling to understand how the clause can be described as circular. It says that the director may use the information that he has obtained. That is not circular.
Mr. Ainsworth: I shall not try to justify the statement of the hon. Member for Surrey Heath (Mr. Hawkins). It does not hold water, but I doubt whether that will bother him unduly, given that he has been in that situation on many occasions.
For the director to be able to carry out his functions effectively, he will need to be able to exchange information with other bodies with which his functions overlap. For example, if he is to assist the law enforcement and prosecution authorities in a criminal confiscation investigation, he will need to be able to receive information from those authorities. If he uncovers information in a civil recovery investigation that might be relevant to a prosecution, he will need to be able to disclose it to the police.
Part 10 sets out the gateways that will allow the exchange of information and the uses to which the information obtained may be put. Clauses 420 to 423
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set out the necessary provisions in respect of the director. Clauses 424 to 427 make equivalent provisions in relation to the Lord Advocate and Scottish Ministers. Clause 420 establishes that the director will be able to use information obtained in connection with any of his functions to assist him in the exercising of his other functions. That will mean that he will be able, for example, to use information obtained in the course of a criminal confiscation investigation subsequently to take forward a civil recovery case, if that is the route down which he wants to go, or information obtained during a civil recovery investigation in a subsequent tax case.
That will ensure that the director is not required to reobtain information simply because he is considering bringing proceedings under a different part of the Bill. That will apply whether he obtains information himself or, as is more likely, it is obtained by one of the agency staff on his behalf. The director will be required to exercise his functions in accordance with guidance issued by the Secretary of State under part 1. He will also have regard to the detailed memorandum of understanding that will be drawn up between him and the prosecution and law enforcement agencies.
Mr. Alistair Carmichael (Orkney and Shetland): Will the Minister clarify whether the provision will exclude other people from using information that has been obtained by the director of the Assets Recovery Agency? If the director were to obtain information that could constitute grounds for criminal proceedings, would he be able to pass that information to the Crown Prosecution Service?
Mr. Ainsworth: As we go through the Bill, we will come to the provisions under which the director will be able to pass information to other people. Some time ago, in our discussions on part 1, we talked about the guidance that was planned by the Secretary of State and the hierarchy that we envisaged within that. In general, the Committee approved of the hierarchy and agreed that confiscation should not take precedence over the prosecution of criminals. Let us suppose that the director comes across information during a confiscation proceeding that leads him to believe that a prosecution is appropriate and viable, but he is unable to bring a prosecution himself. In those circumstances, he should be able to pass on the information to the prosecution authorities for their consideration.
Under the clause, if information comes to the director under one part of his powers, he should be able to use it under other parts of his powers. It reinforces the ability to use the hierarchy. If, during civil recovery proceedings, he comes across information that leads him to believe that there is a case for prosecution, there is no point in his not being able to co-operate with the prosecution authorities, which might subsequently consider criminal confiscation. If he finds that a criminal confiscation is not viable, there is no need for him to regain all the information that has been passed to him before he is able to consider civil recovery proceedings.
The director will be able to apply the information to both criminal confiscation and civil recovery. I think
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that the matter is clear. I do not see the confusion that was suggested by the hon. Member for Surrey Heath.
Mr. David Wilshire (Spelthorne): It is a bit early in the morning to get my mind around whether or not the argument is circular. The Minister has argued that the provision is necessary, but I am not convinced that it is. If it were necessary to state that the director can use information, should we not also say that he can make phone calls, write letters and take holidays? Where does it end? If the intention is to state what the director can and cannot do, the Bill must be consistent in that. If the director has to have a meeting—for which he does not have permission—are we to assume that he will be unable to use any information gained from that meeting? Inconsistency, not circularity, is my worry.
Another worry is about the singling out of information. Why is the word ''information'' used? What is the difference between information and knowledge? If someone knows something, does it constitute information? Someone who knows something cannot unknow it. There is therefore no point in specifying in a Bill that having discovered something it should be possible to unlearn it, unless another clause specifies that a person is entitled to remember it. When is information not information? Can evidence obtained for one purpose be used for another? If the clause means evidence rather than information, why does it not say so?
Why is the provision necessary? The director may and may not do many other things. If we list one, we should list them all. Why single out information? What is information? The Minister should say what he means by ''information obtained''. Is it evidence? Is it knowledge? Is it property?
The Minister referred to the need to reobtain information. That is unnecessary, too. Once someone has information, why do they need to reobtain it? If they have been told something, they do not have to ask to be told again.
I have not been persuaded. The Minister made a good job of reading out his brief early in the morning, but unfortunately it does not go anywhere near justifying—
Mr. Stephen McCabe (Birmingham, Hall Green): How much longer can you go on about this?
Mr. Wilshire: Quite a bit longer, if pushed. I apologise, Mr. Gale. It is early—
Mr. Ainsworth: Not as early as it was.
Mr. Wilshire: Indeed. The sun will have moved to another window before we get much further.
Why must the Minister single out information, and not other things? Why does he pick information, rather than knowledge, evidence, property or something else? Why does he need to mention reobtaining something? Is he forgetful? Must he obtain information again? I do not think that that is true of many people. He must briefly deal with those anxieties, too.
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Mr. Stinchcombe: Let me deal with a couple of the hon. Gentleman's points. First, the power is necessary because the director can do only what Parliament empowers or obliges him to do. Clearly he will receive information, and we must specify what he can do with that information. Secondly, the word ''information'' is presumably used because it is used elsewhere in the Bill. For example, in clause 346 we created disclosure orders under which information will be provided.
Nearly all the endless speeches that the hon. Member for Surrey Heath makes are prefaced by a great tribute to his own legal experience and expertise. It seems appropriate to apply at least some forensic legal analysis to the clauses that he criticises. He states that the provision is circular. It is clearly not. It is exclusively linear. It provides that information received by the director may be used by the director and directs our attention to how that information must come to him and how he may use it. It uses the words
in connection with the exercise of . . . his functions
in both cases. That is perfectly clear.
The issue raised by the amendment that has not been selected focused entirely on the words
in connection with the exercise of . . . his functions,
and was intended to clarify only whether that was too narrow or too broad and how wide its remit was. It was not intended to criticise the provision's apparent circularity, which is non-existent.