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Viscount Bridgeman: I am grateful to the Minister for that very full reply, by which I am persuaded. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 100 not moved.]

Clause 35, as amended, agreed to.

Clause 36 [Making, varying or discharging account monitoring orders]:

[Amendments Nos. 101 and 101A not moved.]

Lord Filkin moved Amendment No. 102:



"( ) a senior customs officer,
( ) a customs officer authorised by a senior customs officer to make the application."

On Question, amendment agreed to.

Clause 36, as amended, agreed to.

Clause 37 [Customer information]:

[Amendment No. 103 not moved.]

Clause 37 agreed to.

Clause 38 [Making, varying or discharging customer information orders]:

[Amendment No. 103A not moved.]

Lord Filkin moved Amendment No. 104:


    Page 22, line 9, leave out paragraph (b).

The noble Lord said: I shall speak also to Amendments Nos. 108 and 110. These are technical amendments necessary to ensure that the provisions on banking information for Scotland accurately reflect Scottish procedure. I shall go slightly further, with some temerity. My summary notes describe these three measures as "technical Scottification"—a term that I have never heard before. I am not sure it will catch on.

The first two amendments remove references to a senior police officer from Clauses 38 and 41, which deal with the making, variation and discharge of customer information orders and account monitoring orders in Scotland. This will ensure that Scottish procedure is accurately reflected. In contrast to the rest of the United Kingdom, as provided for in Clauses 32 and 35, under the Scottish provisions in Clauses 37 and 40 police officers do not apply for customer information and account monitoring orders. In Scotland, the procurator fiscal has responsibility for the application to the sheriff for the customer information order and the account monitoring order, so it is appropriate that only the procurator fiscal may

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apply for a discharge or a variation under Clauses 38 and 41. For this reason, it is inappropriate to refer to a senior police officer in these clauses.

The purpose of the third amendment is to clarify in relation to Scotland that the reference in subsection (7) to a power of attorney includes a "factory and commission". Factory and commission is a deed empowering another act for the grantor, such as buying and selling shares, similar to the English power of attorney. This is a technical amendment to reflect the position of the Scots law, where an agency arrangement may be established in writing as either a power of attorney or factory and commission. This agency could be used to operate an account on behalf of another. The amendment clarifies the intention that in whatever form the arrangement is established the agent is a person who holds an account for the purposes of Clause 43. I hope that is an adequate explanation for these three government amendments. I beg to move.

Baroness Carnegy of Lour: I think lawyers in Scotland are extremely anxious that only they should understand some aspects of the law, so that they can have lots of customers. I have never heard of factory in this sense. I looked it up in the dictionary, which gave an ancient meaning of "that which is done by a factor". I suppose that is the derivation. That is interesting. I hope the amendments clarify the law. I do not think that they do so for most Members of the Committee.

On Question, amendment agreed to.

Clause 38, as amended, agreed to.

Clause 39 [Offences]:

[Amendment No. 104A not moved.]

Clause 39 agreed to.

Clause 40 [Account information]:

[Amendments Nos. 105 and 106 not moved.]

Clause 40 agreed to.

Clause 41 [Making, varying or discharging account monitoring orders]:

[Amendment No. 107 not moved.]

Lord Filkin moved Amendment No. 108:


    Page 23, line 25, leave out paragraph (b).

On Question, amendment agreed to.

Clause 41, as amended, agreed to.

Clause 42 agreed to.

Clause 43 [Information about a person's bank account]:

Lord Goodhart moved Amendment No. 109:


    Page 24, line 31, leave out subsections (3) and (4).

The noble Lord said: Amendment No. 112 is also in this group. Amendment No. 109 would remove subsections (3) and (4). Clause 43(1) authorises a judicial authority in the United Kingdom, on an application made by a prosecuting authority, to request assistance to obtain from another country the equivalent of a customer information account. Clause

27 Jan 2003 : Column GC140

44 again provides for a judicial authority, on an application made by a prosecuting authority, to make a request to an overseas authority in a participating state for assistance that is equivalent to an account monitoring order.

Subsection (3) and (4) of both clauses authorise a prosecuting authority that is designated by an order made by the Secretary of State in England or by the Lord Advocate or a procurator fiscal in Scotland to bypass the need for judicial authority and to make a request directly to the overseas authority. Given that it is broadly accepted that the orders are seriously intrusive, there should be a judicial filter between a prosecuting authority that wishes to have the information and the foreign authority or bank in a foreign country that will be bound to provide it. For those reasons, we believe that subsections (3) and (4) of both clauses should be removed. Only a judicial authority should be able to authorise the application for the order directed to a bank in a foreign country. I beg to move.

Lord Filkin: As the noble Lord, Lord Goodhart, rightly says, these clauses deal with outgoing requests under Article 1 of the protocol to obtain customer information orders. The amendments would prevent designated prosecuting authorities from applying to countries abroad for information relating to banking transactions that would be relevant to an investigation into criminal conduct in the UK. The first amendment relates to the ability of prosecuting authorities to request information concerning any overseas bank accounts that the subject of an investigation may hold. The second relates to the ability to request information about ongoing transactions in respect of a specified overseas bank account—what we have referred to as account monitoring orders in domestic terms.

The Government believe it is right to give designated prosecuting authorities these powers. In practice, it is not the courts, but the designated prosecuting authorities—the Serious Fraud Office, the Crown Prosecution Service and Her Majesty's Customs and Excise—that are responsible for the vast majority of outgoing requests for all forms of mutual legal assistance. Their role in making such requests is well established on a domestic and international basis, as is the equivalent role of the Lord Advocate and the procurator fiscal in Scotland.

If the designated prosecuting authorities were unable to apply for this type of request—as they currently do—which will be the equivalent of seeking a customer information order or account monitoring order in the domestic context, they would be required to go to a court to make applications on their behalf. This would impose an unwarranted extra burden on the courts and require them to do work that could be adequately handled by a designated prosecuting authority. I find it hard to see why we would not give such prosecuting authorities power to request such information internationally when they are able to do so in a domestic context.

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It may be useful if I specify the designated prosecuting authorities identified by statutory instrument under the 1990 Act so that that is on the record. They are: the Attorney-General for England and Wales, the Director of Public Prosecutions and any crown prosecutor, the director of the Serious Fraud Office, the Secretary of State for Trade and Industry, the commissioners of Customs and Excise, the Attorney-General for Northern Ireland and the Director of Public Prosecutions for Northern Ireland. The Bill gives power to the Lord Advocate and the procurator fiscal for Scotland.

These authorities are very experienced in mutual legal assistance. We do not consider that the courts could add anything to a process that is just another form of mutual legal assistance. It is far more effective if those who have knowledge of the cases are able to make requests concerning them. I therefore urge the noble Lord to consider withdrawing the amendments for the reasons I have given.

Baroness Carnegy of Lour: Am I right in being surprised that the Secretary of State for Trade and Industry is not included in the list for Scotland? Might he want to do it? I think his writ runs in Scotland. Or am I wrong?

Lord Filkin: The noble Baroness is right to note that the Secretary of State for Trade and Industry is included, but I do not think that she is right to be surprised. The Secretary of State already has prosecuting powers under domestic legislation, but it is not included for Scotland. The procurator fiscal does it all in Scotland.

Lord Goodhart: I am grateful to the noble Lord for his reply. I shall consider further what he has said and decide in the light of that consideration whether to take these amendments further. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.


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