Proceeds of Crime Act 2002 (References to Financial Investigators) (Amendment) Order 2009

My Lords, the Proceeds of Crime Act 2002 is 300-odd pages long. At its Second Reading, its complexity and disorder were commented on adversely by the noble and learned Lord, Lord Lloyd of Berwick. This complexity has made it more difficult to understand even than the constitution of the Holy Roman Empire in the early part of the 17th century; I know that as I have borrowed a history of the 30 Years’ War from your Lordships’ Library. My only regret in having made that comparison is that the late Earl Russell is no longer with us. Section 68 states who may be financial investigators. They are defined as a police officer above superintendent and a customs officer above a certain grade—so far, so good. The third type was to be designated by the Secretary of State in statutory instrument. No one commented on this at Second Reading and the enabling clauses were passed undebated at both Committee and Report stages. The powers of the financial investigators are wide and sweeping. I have no objection to that, even though the Joint Committee on Human Rights at that time thought that the seizure of criminal goods in the way in which the Act allows amounted to double punishment. However, the Government did not agree with that and passed the Act as it stands. The powers are admitted by the judiciary to be draconian and therefore should be used only to combat those serious criminals who organise drug smuggling or people smuggling. That was the stated objective at the time. It was not intended to include, as does the new list, those who dodge fares, those who fiddle pensions, those who are behind with their council tax or similar minor offenders. It will be no good for the noble Lord, Lord Brett, to come to the Dispatch Box and read out a prepared piece of anodyne guff telling us that the powers will be used with discretion. They will not. The agencies are on to a slice of the money seized. The only time I have heard of such a thing before was when Bertie Wooster commented that Sir Roderick Glossop had had a slice of the fines that he imposed in the magistrates’ court. Too many cases of official heavy-handedness have already occurred in the near past and there has been no confidence in the siren calls of official restraint. In a case where a chemist made a false prescription claim involving £464, under the existing Act £212,000 was seized from him. Luckily, that was quashed on appeal. We have seen anti-terrorist powers used to question tourists photographing St Paul’s. I believe that even the noble Lord, Lord West, was stopped under Section 44 of the Terrorism Act. We have seen local authorities using RIPA powers against people for putting rubbish into the wrong bins. We have seen these powers used against people for trying to send their children to the school that they want but which the local authority does not, against people for illegal fishing for eels in Poole harbour and against a punt operator in Cambridge for landing at the wrong place. Last, in this far from comprehensive list, one Stephen Clarke, who was standing near a manhole cover fiddling with his mobile telephone, was arrested. The police banged him up for two days, accusing him of taking photographs with a view to committing a terrorist offence. Happily, the magistrates acquitted him of any wrongdoing. This general abuse of powers has increased and is increasing, but it has to be reduced, preferably to vanishing point. This statutory instrument repeals an earlier one passed last spring. That one added only Uncle Tom Cobbleigh and most to the number of financial investigators; this one rectifies the deficiency and the list now makes sure that Uncle Tom Cobbleigh and all have the powers. This abuse of executive power was drawn to my attention by the Times. No one had noticed it until then. The Merits of Statutory Instruments Committee also had its attention drawn to it by the Times. Therefore, we owe that newspaper a debt of gratitude for doing something that none of us parliamentarians noticed, which we should have done. The Merits Committee then complained, saying: ""More importantly however, it gives some agencies (Counter Fraud and Security Management Service; Department of Health; Department of Regional Development in Northern Ireland; ""Gangmasters Licensing Authority; Home Office; Intellectual Property Office; local authorities; Serious Fraud Office; and Transport for London) powers they did not have previously"." It points out with icy restraint that the lack of broad consultation on this instrument meant that the committee and, therefore, the House were, ""unsighted on the views of key stakeholders"." The Home Office, in answering the lack of consultation complaint, said that as the powers had not been controversial it saw no need to consult those who had those powers under Section 68. Section 68 gives the Secretary of State the power to grant financial investigator powers to anyone he thinks fit. He should think long and hard before he doles them out. The Merits Committee also complained that the Government failed in the spirit of their own guidance. The Law Society has written to the Home Office Minister, Mr Campbell, saying that it was of great concern to it to learn that these powers would no longer be restricted to serious organised criminal activity but instead would be able to be used against fare evaders, parking defaulters and bookmakers operating rigged betting rings. The Law Society said that it was even more concerned to learn of this change through the media and only after the statutory instrument had been passed by Parliament. Paul McKeever, chairman of the Police Federation, is quoted as saying: ""The Proceeds of Crime Act is a very powerful tool in the hands of police and police-related agencies and it shouldn’t be treated lightly"." He went on to opine that the public should be very concerned at the, ""behind-the-scenes creeping of powers"." He could not be more right. There is a very serious principle involved here. The power of the state to seize people’s goods or to lock them up should be granted only after a full debate in Parliament with Ministers of the Crown making a concrete case for it, not by sneaky hole-in-the-wall statutory instruments. This is what the Government have done and, I hasten to add, not for the first time. It is a disgrace. I wish only that I had been able to ask the House to pass a fatal Motion and not one only of an admonitory nature. I beg to move.