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Lord Clinton-Davis: I also support the idea that my noble friend should look carefully before he limits the ability of Parliament to scrutinise legislation. For all I know, my noble friend may have a serious point to make by way of rejoinder, but the burden of proof falls fairly and squarely on him. If I had been in the noble Viscount's position, I would have moved the amendment without any hesitation. That does not mean that there is no answer to the amendment, but the burden of showing that there is falls on my noble friend. I hope that he will be able to discharge that duty.

Lord Renton: I will make a wide, fundamental case for Amendment No. 113A. First, I must confess that, in an earlier discussion, I overlooked the definition of "serious criminal conduct" in the clause. The more I think about it, the more I think that confusion will be caused by having two types of criminal offence—a "criminal offence" and a "serious criminal offence", however defined. There is plenty of time between now and Report for the Government to consider whether the definition will enable justice to be done or even allow the law to be properly complied with.

As we are breaking new ground in international law, as well as domestic law, we must be careful about making that somewhat artificial distinction. If we are to make it, I prefer the definition put forward by my noble friend in Amendment No. 113A to that in the Bill. The definition in the Bill is artificial and vague. It would be better and would improve the effect of the Bill if we were to abolish the distinction between "serious criminal conduct" and "criminal conduct".

As the noble Lord, Lord Goodhart, said, Amendments Nos. 113B and 113C are of a familiar kind. They would only improve the Bill, and I hope that the Government will be sympathetic to them.

5.15 p.m.

Baroness Carnegy of Lour: Regardless of the major point made by my noble friend Lord Renton, I point out to my noble friend Lord Bridgeman that Amendments Nos. 113B and 113C will not do. If they were agreed to, orders defining offences would have to be made by the Scottish Parliament, because it makes secondary legislation. It is important that the same level of offence apply in both parts of the United Kingdom. So there are complications in catering for two jurisdictions. I see what my noble friend Lord Bridgeman has said, but the amendment would need more attention, should the Government be interested in it.

Lord Filkin: I shall try to rise to the challenge set by my noble friend Lord Clinton-Davis to discharge my responsibility to convince the Committee that affirmative resolution is not necessary.

Clause 46 defines "serious criminal conduct" as constituting the offences listed in Article 1(3) of the protocol. It provides that requests for customer

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information may be sought only for crimes with a penalty of at least four years. Amendment No. 113A would enable us to introduce our own threshold for crimes, for which CIOs could be sought, of a maximum sentence of 10 years.

A crime with a maximum sentence of 10 years is undoubtedly serious. But other serious offences would not meet the test, where we might wish to offer, or seek, this type of assistance. Customer information orders will be helpful in tracing and locating criminals and terrorist groups. For example, under the Child Abduction Act 1984, child abduction—taking a child out of the United Kingdom without consent—attracts a maximum sentence of seven years. The Committee will know the distress that that can cause to families. We would not wish to deny ourselves, even if the protocol did not so oblige us, the ability to use customer information orders in such circumstances. Banking information might be a considerable assistance in locating a suspected child abductor.

Some terrorist offences have a sentence of less than 10 years. For instance, possession of a dangerous article on an aircraft, including bombs, grenades or firearms, is classified as a terrorist offence and has a maximum sentence of five years, which may surprise the Committee. Under the Computer Misuse Act 1990, unauthorised modification and unauthorised access with intent both attract maximum sentences of five years. These offences are examples of crime without borders, and they could be the subject of an international investigation, given the considerable damage they can cause.

The amendment would also rule out seeking or providing assistance in investigations into benefit from crime in cases where the maximum sentence is less than 10 years. There are many offences in those categories that might give rise to such an investigation.

Furthermore, imposing a 10-year threshold would place us in breach of the terms of the protocol, meaning that the UK would be considered not to have fully implemented the protocol. We could not, therefore, expect other countries to comply with our requests for assistance of that type.

The noble Lord, Lord Renton, asked whether we should abandon the distinction between crime and "serious" crime. As I have said on several occasions, it is a fundamental element of the protocol. It is there for good reason: to recognise that customer information orders, which are a considerable new measure, as has been rightly said, are potentially enormously valuable in assisting to trace criminal offences, but nevertheless impose burdens on the financial institutions. For that exact reason, the term "serious" has been inserted and defined as set out in the protocol. It strikes the balance between necessity and burden on the financial institutions. We think that that balance is right. It would be wrong not to limit customer information orders to the most serious offences as the protocol and the Bill do. As the noble Viscount, Lord Bridgeman, who was teasing me, knows, these are not guidelines; they are articles in the protocol to a convention that we are under obligation to comply with.

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Amendments Nos. 113B and 113C would mean that any order made by the Secretary of State or Scottish Ministers to designate further offences for which customer information orders may be sought would be subject to affirmative, rather than negative, resolution. Customer information orders provided for in Clauses 32 and 33—Clauses 37 and 38 for Scotland—allow the United Kingdom to make, and assist with, requests to trace banking information in order to assist with investigations into serious criminal conduct. Clause 46 defines "serious criminal conduct" and provides an order-making power for the Secretary of State to specify further offences for which this information can be provided in the future.

I have noted with interest the point by the noble Baroness, Lady Carnegy of Lour, about the Scottish Parliament. I suspect that she is right, as she has been on many occasions, about the requirement on the Scottish Parliament were such an amendment passed. If she is wrong, with temerity, I shall write to point that out.

Clause 46(3)(b) provides that the order-making power be used,


    "for the purpose of giving effect to any decision of the Council of the European Union under paragraph 6 of that Article".

That means that, should the EU member states decide that the scope of Article 1 should be broadened to cover more crimes, as provided for in Article 1(6), the UK would be in a position to broaden the assistance it can provide without passing new primary legislation.

This provision was included in the protocol to avoid the need for an amending convention. But any decision to broaden the scope of Article 1 would be taken only in the light of experience of operating the provision, and with the agreement of all member states. The decision would be subject to parliamentary scrutiny through the usual processes. CIOs will be useful not only in tackling financial crime but in tracing and locating criminals and terrorist groups, who might be involved in committing a range of crimes. Therefore, it is necessary that the Secretary of State retain the power to widen the circumstance in which they will be sought in future.

The report of the Delegated Powers and Regulatory Reform Committee concluded that the level of scrutiny of the majority of the order-making powers in the Bill was appropriate, including the power in Clause 46. I am satisfied, therefore, that the power is subject to appropriate levels of scrutiny. I urge Committee Members to withdraw the amendment.

Lord Renton: Having listened to the Minister with interest and care, I feel bound to point out that we are getting into a very confused state. Failure to comply with a request for information on bank accounts is not the most serious criminal offence. Although we should deal with it, there are many more serious offences.

Although, as MP for Huntingdon and a member of the English Bar, I never boasted about it, I am more than half-Scottish and have always been proud to be so. I rejoice that in this Bill we are making special

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provisions for the application of the Scottish legal system. A conflict in practice could arise between Clause 46(3)(a) and the provision in paragraph (b). It is interesting that, although in England, Wales and Northern Ireland, quite serious offences may apply in the context of the Bill, anything specified by an order in Scotland is to be a serious offence. The others will not be so described.

I am sorry to have to say so, but we are getting into a nonsensical situation. The Government must reconsider the concept of defining criminal offences as "serious". It will only lead to confusion, and I am trying to help.

Viscount Bridgeman: I apologise for giving an incomplete explanation of Amendment No. 113A. We had intended to say that it was not intended only to cover crimes with a maximum penalty of 10 years. We would want the Secretary of State to have power to list other crimes, either by schedule or as an order. The Minister has met our requirements in that regard. We shall read carefully what he says.

On Amendment No. 133B, I note what the Minister said about the Delegated Powers Committee. Can he inform us what "parliamentary scrutiny" would mean in this context?


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