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Viscount Bridgeman: I am grateful to my noble friend Lady Carnegy of Lour for raising the point. There should be equal treatment as between the different participating members. We will return to that subject. In the mean time, I am grateful to the Minister for that full explanation, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Viscount Bridgeman moved Amendment No. 94:


The noble Viscount said: In moving Amendment No. 94, I shall speak also to Amendments Nos. 96C, 98A and 101A.

This is a probing amendment to see who it is that the Government envisage will apply for a customer information order. I note that the Minister is trying to extend the list of appropriate applicants by adding Customs officers. May we have a clarification of the word "constable"? Could it mean any police officer? Given the nature of the orders, would not it be wiser to allow only senior police officers to apply for such an order? Do the definitions mirror those in other countries with similar legislation?

Once again, we are conscious of how much the orders would cost to process and of the time involved, on the part not only of the police force involved but of the financial institutions. We fully support having the ability to obtain such information to deal with international crime, but we must also safeguard ourselves—and other countries—from the vexatious use of such orders. I beg to move.

Lord Renton: I warmly support my noble friend's amendment. Constables vary so much in their abilities and their sense of responsibility that it would be wrong to put the statutory power into their hands. I hope that the Government will leave that provision out.

I also warmly support Amendment No. 95, which is in the same group.

Lord Filkin: With the present drafting, the constable can apply for a customer information order or an account monitoring order only on the instruction of a senior officer. He cannot make an application off his own bat. The senior officer will always be accountable for the decision to seek the order but will not have to spend time going off to a court to put in the application in person.

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Requiring applications for customer information orders or account monitoring orders always to be made in person by a senior officer would impose a disproportionate burden on the police and would not be a sensible use of senior officers' time. Clause 46 states that a senior police officer must be at least of superintendent rank—in other words, two ranks above constable. I hope that what I have said and what the Bill says will put noble Lords' minds at rest. Constables will not act on their own authority but can do so only under direct instructions.

The Bill follows existing practice, as constables already have similar powers in relation to money laundering investigations under Section 378 of the Proceeds of Crime Act 2002, which defines constables as "appropriate officers". As is made clear elsewhere in Chapter 4, CIOs and AMOs sought because of requests under the protocol have been equated with those for money laundering investigations under the Proceeds of Crime Act.

In response to the question on what is happening with other member states and participating countries, as the legislation is new, we are not aware of their precise arrangements for implementing the provision.

Furthermore, it is likely that the request for an order will arise from an ongoing investigation, on which it is likely that the constable, not the senior officer, will have in-depth knowledge. If a case arises where it is appropriate for a senior officer to make the application in person, the present drafting allows for that flexibility. Given that we think it right that a constable be able to apply for an order on the authorisation of a senior officer, it follows that constables should also be able to make applications to discharge or to vary an order. An order may be discharged or varied if, for example, the requesting authority no longer requires the information, or can narrow down the banks from which the information was sought, possibly on the basis of additional information obtained from other aspects of its domestic investigation.

The government amendments are included in this group, as they raise a similar issue regarding the seniority of officers who can apply for such orders. They allow Customs officers to exercise the power to apply for account monitoring and customer information orders. That is consistent with the Proceeds of Crime Act 2000, which also permits Customs officers to apply for the equivalent domestic orders to assist their investigation. It would be illogical not to allow them to apply for orders of this type in response to overseas requests falling within the Customs investigative remit. In line with the approach taken to police officers, the amendments would also allow senior Customs officers to instruct other Customs officers to apply for such orders under their supervision. The reasons are identical to those already outlined with regard to police officers.

I hope that Committee Members will agree that, to be fully effective, the Bill should be consistent with existing legislation, and should ensure that law enforcement officers are fully equipped to tackle money laundering and financial crime.

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Amendment No. 113 provides a definition of "senior customs officer" alongside that of "senior police officer".

Viscount Bridgeman: As Committee Members are aware, Amendment No. 94 is a probing amendment. I am grateful to the Minister for his explanation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Filkin moved Amendment No. 95:


    Page 18, line 35, at end insert—


"(b) direct a senior customs officer to apply, or arrange for a customs officer to apply, for such an order."

On Question, amendment agreed to.

Viscount Bridgeman moved Amendment No. 95A:


    Page 18, line 40, at end insert—


"( ) No customer information order shall be issued unless—
(a) the authority referred to in subsection (2) has included in its application a full explanation of its reasons behind the application, and
(b) the Secretary of State is satisfied that those reasons are sufficient to justify the issuing of the customer information order."

The noble Viscount said: This point has already been covered in part in other amendments. Again, the British Bankers' Association is particularly concerned with it. Although we agree that there are clear grounds for doing so, the appropriate person applying for a customer information order in connection with a serious offence can be only a positive move in the fight against crime. However, we truly hope that these orders will not become fishing expeditions by police authorities who may suspect some wrongdoing but have no real proof.

This is not just a use of an intrusive order. It may also lead to the over-use of such orders, the danger of which in terms of cost and time I have already outlined to the Committee. I beg to move.

Lord Renton: My noble friend Lord Bridgeman is right to suggest that the authority concerned should give a full explanation of its reasons; otherwise, frivolous applications could be made.

I am sure that my noble friend will not mind my suggesting an alternative way of achieving his purpose. A more compact way of making the point might be to include in subsection (2) a provision that the authority should give a full explanation of its reasons. On principle, my noble friend has raised a point that must be met.

3.45 p.m.

Lord Goodhart: I support in principle the amendment. Article 1(4) of the protocol to the MLAC 2001 states:


    "The authority making the request shall, in the request:


    —state why it considers that the requested information is likely to be of substantial value for the purpose of the investigation into the offence;

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    —state on what grounds it presumes that banks in the requested Member State hold the account and, to the extent available, which banks may be involved;


    —include any information available which may facilitate the execution of the request".

At any rate, paragraph (a) of Amendment No. 95A would simply introduce a summary of Article 1(4) of the protocol; therefore there is considerable justification for it. I can see why it would be undesirable for the receiving body to have to investigate whether the facts, as set out in the information, are correct. It would be inappropriate to ask for the facts to be proved, but there is at least a possibility that, in some cases, it will be apparent from the information provided that it is not an appropriate order to seek. In such cases, it would be appropriate to have some way of questioning the matter. On that basis, I am happy to support the amendment.

Lord Filkin: We understand the reasoning behind the questioning on these clauses. But, in practice, for the reasons I shall set out, we do not believe that legislative change is necessary. Clause 32 allows the Secretary of State to respond to requests for customer information orders received from authorities in participating countries. As the noble Lord, Lord Goodhart, said, the Bill already obliges overseas authorities to show that their request for a customer information order relates to the subject of an investigation into serious criminal conduct. So the authority making the request must state what it is about.

Any such requests would be made under Article 1 of the 2001 protocol to the MLAC. Article 1 states that the authority making the request shall explain why the information is likely to be of substantial value to its investigation; give its reasons for believing that the banks in the requested member states hold relevant accounts; and supply any further relevant information.

Clause 32(3) makes clear that the issue of whether to respond to an overseas request is at the discretion of the Secretary of State. It states:


    "The Secretary of State may direct a senior police officer to apply".

If the Secretary of State is not satisfied that the request meets the requirements of the protocol, including the provision of the information required by the protocol, he will not take it further.

A further level of discretion is involved in applications for CIOs from overseas. Clause 32 allows the Secretary of State only to direct a police officer to apply for a CIO. The issue of the order depends on Clause 33, which sets out that the making of an order is at the discretion of the judge, who must be satisfied that the conditions of Clause 33(1) are met.

The protocol that these clauses implement imposes, therefore, a heavier burden of proof on those seeking this type of assistance in recognition that such assistance, while essential and valuable, is potentially more burdensome than a mere traditional mutual legal assistance request. We think that the degree of justification provided by the protocol, combined with

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the discretion allowed by Clauses 32 and 33, achieves the right balance. Therefore, there is no need for further legislative entrenchment, since the protocol requires detailed justification of requests, and we have maintained the discretion not to comply with them if they do not meet the criteria in the opinion of either the Secretary of State or the court, on making the order. I hope that I have addressed the concerns raised on the amendments.


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