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

My Lords, I also thank my noble friend Lord Onslow for raising the matter. As members of the Joint Committee on Human Rights know, he is a strong advocate of the rights of individuals and the liberty of the subject. This order is the most recent in a line of orders under the Act which have progressively added to the different bodies that can apply to have financial investigators appointed for the purpose under the Act. As he and the noble Baroness, Lady Hamwee, outlined, such investigators have considerable powers designed to recover the proceeds of crime. I have no doubt that, on Second Reading on 25 March 2002, everybody in this House had in mind—as the Government had in mind—the recovery of large sums of money from major criminals. I am delighted that the noble Lord, Lord Rooker, is in his place. In his second paragraph in Hansard on that day, he said: ""The huge profits made from crime are often flaunted and give force to the old saying, ‘Crime pays’. This causes deep offence to hard-working and law-abiding members of the community and it makes harmful role models for our young people. Above all, the proceeds of crime provide the working capital for future criminal enterprise. Recovering the money must therefore be an inherent part of our crime reduction strategy"." He went on to say: ""Another problem is that many major criminal figures have become untouchable by prosecution and confiscation. They organise or finance the criminal activity of others and then profit from the results".—[Official Report, 25/3/02; cols. 12-13.]" That atmosphere prevailed and was shared by other speakers in that debate. The House was talking about major crime, major sums of money and major criminals. The 2003 order which designated the first financial investigators referred to a number of different bodies, which have been added to over the years. Those bodies moved progressively away from the kind of crime that was in everybody’s mind when the matter was discussed. The order made earlier this year was in similar form to that which we are discussing this afternoon, but it did not include local authorities, among others. One reason for the amended order appears to be to remedy that omission. It is interesting that the original order came in in May and this one was brought in in October. In May, we talked about adding financial investigators who were members of staff of the Serious Fraud Office, the Gambling Commission, Royal Mail and the Office of Fair Trading. By October, we wanted to add others, and it is extraordinary that this could happen in such a short space of time. As my noble friend has indicated, there is a danger that the legislation is used for purposes for which it was never intended. In saying that, I make no allegations of bad faith on the part of the Government, but Parliament—and we must all include ourselves—would be remiss if it did not stop this process at a much earlier stage. I do not even blame the individual organisations that have decided that, since the powers exist and you can get them by applying for them, they want their bit of the action. The blame rests with us, particularly those of us in a different part of this building who could have stopped the statutory instrument in its tracks, but which we cannot do. The Merits of Statutory Instruments Committee, as we have already heard, did not raise it in the first instance, but did do so at a later stage. I have no doubt that when powers are taken, they will be used, so the legislation must be drawn to ensure that that is not possible. As my noble friend Lord Onslow indicated, we have not been good at this. Anti-terrorism legislation has been used to stop people reading out the names of the dead at the Cenotaph and to freeze the assets of Iceland, thus alienating a friendly state and fellow member of NATO. The House considered a code of practice following the Serious Crime Act 2007 which merged the Assets Recovery Agency with the Serious Organised Crime Agency, the body which authorises the appointment of these individuals. But it is my belief that the kind of powers that we have heard listed should be exercised by the smallest number of law enforcement agents possible and not handed out to anybody who thinks it would be convenient to have them. If other bodies want these powers, should they not call on the normal law enforcement agencies to exercise them? If they cannot do it, serious questions need to be asked about their organisation and funding. The extension over the years has been formidable, so that the number of bodies included in the order even managed to increase between May and October. I want to ask the Minister this: under what circumstances and what kind of case is envisaged that would lead local authorities, the Post Office and Transport for London to want powers that were introduced to curtail, ""major criminal figures who have become untouchable by prosecution and confiscation"." You need quite a lot of car parking tickets to come under that description. If my noble friend chooses to divide the House, I will support him, although it is in the nature of non-fatal amendments that it can only be a gesture. However, it may be a gesture worth making in this instance to demonstrate, at least at this stage, that we have noticed what has been going on, and to give notice to Governments of any persuasion that Parliament has noticed and that the future extension by statutory instrument of such extraordinary and considerable powers to organisations for whom they were not envisaged by anyone at the time that the initial power was provided in the Bill, will not be tolerated and should not occur again.