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Under the Bill, two types of order can be made relating to information about banking transactions. One is a customer information order; the second is an account monitoring order. I do not propose to go into the details of what they involve but, broadly speaking, a customer information order requires a bank to indicate what different accounts a particular person may have with it, and an account monitoring order enables transactions on a particular account to be kept under scrutiny.
A customer information order can be made only for the purpose of investigating serious criminal conduct. Such conduct is defined in the Bill as an offence to which paragraph 3 of article 1 of the 2001 protocol applies. However, an account monitoring order may be made for the investigation of criminal conduct, whether serious or not. Serious crime, as defined by paragraph 3 of the protocol, means an offence that is punishable by prison for a period of not less than four years in the requesting state, and not less than two years in the requested state.
It is not clear why there is a distinction between a customer information order and an account monitoring order in that respect, in either the protocol itself or the Bill. In Grand Committee, the noble Lord, Lord Filkin, said that account monitoring orders were focused on specific identified accounts and were therefore less resource-intensive for financial institutions. I can understand that to be the case. However, what is perhaps
The purpose of the amendment is to raise the standards for account monitoring orders to serious criminal conduct, which is the same standard as for customer information orders. Therefore, it would obviously not increase the burden on financial institutions. Indeed, if it reduced the number of account monitoring orders, it would slightly reduce the burden.
The amendment would protect account holders from intrusive monitoring. In all cases where an account monitoring order would be appropriate, I believe that crimes are involved such as organised fraud, drug dealing and person trafficking, where the penalty would anyway be above the minimum for serious crime. It seems to me at least highly doubtful whether account monitoring orders would be used to any significant extent for offences where the investigation was not into a serious crime.
Therefore, the balance between intrusiveness and crime prevention, which in this case has been got right for a customer information order, is wrong for an account monitoring order. The trigger for that order should be the same as for a customer information orderinvestigation into a serious crime as defined in the Bill and the protocol. I beg to move.
Lord Filkin: My Lords, I am grateful to the noble Lord, Lord Goodhart, for speaking so clearly about the central thrust of his amendment. As we know from our discussions in Committee, he understands the distinction between account monitoring orders and customer information orders and the levels of criminality involved. I shall therefore not speak at length. I shall explain why the protocol is as it isit is the product of considerable deliberation between the United Kingdom and other European Union member states over a substantial period.
The reason for the restriction in relation to tracing accounts was explained in Committee: as the noble Lord, Lord Goodhart, signalled, such requests are likely to place significant demands on the resources of countries without central bank registers, and it was judged that there is a need for proportionality between the crime in question and the measure requested. The protocol explicitly states that the obligation to assist under Article 1 is limited to those cases which we have described, for simplicity, as involving "serious criminal conduct", as defined in Clause 46(3) of the Bill. The reasons for not having an equivalent restriction in relation to account monitoring orders are perhaps less clear and merit further explanation. We do not consider that a parallel restriction in relation to account monitoring would reflect the aims of the drafters of the protocol or make full use of the opportunities available to us as the requesting state.
As the noble Lord, Lord Goodhart, signalled, that did not lie behind the amendment; if I understood it correctly, that involved more an argument about balancing the civil liberties of the person whose account, unknown to them, might be being monitored against the potential level of serious criminalityor otherwiseof the suspected person. I understand that argument but I am unsympathetic to it.
The fact that we are defining some offences as "serious" in the Bill does not imply that the other offences of which a person is suspected of being connected with or potentially guilty of but which do not meet the strict testsif I have them right, they are a maximum period of at least four years in the requesting state and at least two years in the requested stateare not serious. They simply do not meet the test. I should be happy to give a list of examples of offences that do not meet the test of being "serious" as defined in the clause to which I referred previously but which under any common-sense meaning of the word are seen by the public as being serious.
The view that we should not use legitimate, properly tested conditional and proportional powers of the state to try to find out whether criminality is going on because it is argued that it is best to protect the civil liberties of the suspected criminals is deeply unconvincing. We will not use the powers willy-nilly; they will be used although they are burdensome to the requesting states, the officiating states and the courts. It will require effort to use them but we must use them and monitor accounts when there is a suspicion that people have committed offences.
A further point is that in some cases people will be traced through account monitoring orders who may, to use the patois, be the small fish in events but they may lead us to the bigger people. For that additional reason, I am deeply unsympathetic to the restriction.
I am sure that this is a probing amendment and that it is intended to tease out the Government's perspective. For the reasons that I have given, we do not expect there to be thousands of such monitoring orders. My recollection is that our best estimate is that at most there will be about 500 a year in those circumstances. These are people whom other international bodies believe to be potentially involved in criminal activities. Irrespective of the fact that we would be non-compliant with the protocol, not using these powers would seem to us to go completely against the thrust of government policy. I hope that the House will be sympathetic to that argument.
Lord Goodhart: My Lords, the amendment is intended seriously and not merely as probing. I am a little unhappy with the nature of the noble Lord's response to it, because I believe that there is a potential
Having raised the issue, in the circumstances I am not minded to press the amendment further. I simply hope and trust that the Government, or rather the responsible authoritiesobviously decisions will not be taken at anything like ministerial levelwill bear in mind that the powers which are given must not be used intrusively or disproportionately. Therefore, I beg leave to withdraw the amendment.
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