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

My Lords, I congratulate my noble friend Lord Onslow on tabling this Motion. As he rightly said in his introduction, this order is not an innocuous piece of secondary legislation but one which raises issues of considerable importance about the powers of the state and the way that the Government choose to legislate. I can tell the noble Countess, Lady Mar, that the words "mission creep" occurred to me early on in my research for this debate. The Minister must understand the concern that these powers are following the way in which other organised crime and anti-terrorism powers are being overused and abused. This stems from the fact that the Regulation of Investigatory Powers Act was originally used by only nine organisations. Now this has been extended to over 800; my noble friend Lord Onslow cited some of them. This order derives, of course, from the Proceeds of Crime Act 2002, which I accept immediately had considerable merit. It was presented at the time as the means by which the police and HMRC would be able to confiscate the ill-gotten gains of serious—note the word serious, as my noble friend Lord Onslow and others have—criminals. There are few among us who would disagree that seizing a yacht or fleet of luxury cars from someone with no apparent income, other than, say, selling stolen artwork or smuggling drugs, is not an unsuitable response by the state. However, as has been mentioned over and over again this afternoon, the powers which are being awarded by this order are out of all proportion to the crimes which will be relevant. It is difficult in the extreme to consider, for example, housing benefit fraud in this context, especially as we know how often fraud and error are confused in social security benefits. The noble Lord, Lord Thomas of Gresford, is right: this is overprovision in the extreme. As my noble friend Lord Bowness pointed out, the list of bodies which will henceforth be able to seize assets, freeze assets and seek the forfeiture of cash is quite surprising. Local councils in England and Wales will have this power. Royal Mail, Transport for London and the Department of Health, among others, will be given the appropriate power. At the commencement of the Act, that was a matter reserved for police and officers of HMRC. Under this order, these other "financial investigators" can step in and seize property if they—which presumably means their employees above a certain rank, details of which are stated religiously in the order—have been trained and accredited by the National Policing Improvement Agency. The noble Baroness, Lady Hamwee, commented on that. Does the Minister really think that that is a suitable arrangement? The Minister may well argue that because training is to be conducted by the NPIA, there is nothing to worry about. That this training should take place goes without saying, but should it be provided in the first place to employees of councils, the Royal Mail and other organisations? This order marks a considerable accrual of powers to the state by spreading around powers that one would have thought should be the exclusive preserve of the police and HMRC. Like my noble friend Lady Buscombe, I noted that, alarmingly, paragraph 7 of the Explanatory Memorandum to the order states: ""Current policy is to limit access to these intrusive powers to appropriate public (rather than private) bodies"." Will the Minister confirm that it will never become policy to include private bodies in the list? It is rather instructive to consider the comments of Paul McKeever, chairman of the Police Federation of England and Wales, in the Times. Those comments have already been well referred to. Moreover, an expert in asset recovery law has said that it is dangerous to place these powers in, ""the hands of someone less experienced and less skilled, particularly when combined with the incentive of their department collecting a share of the confiscated money"." Given that only two years ago the Public Accounts Committee of another place criticised the lack of supervision of financial investigators by the National Policing Improvement Agency, which is to carry out this unspecified training, is this not an extremely valid concern? I am grateful to the noble Baroness, Lady Hamwee, for that point. It is not enough for the Minister to respond that these powers will be used correctly and wisely. We know from past experience of this Government that unexpected consequences tend to turn up in their legislation. As we have heard, we have seen counterterrorism powers and surveillance laws used for purposes that could not possibly have been intended when the relevant provisions were drafted. For that reason, any extension of the powers of the state must be properly debated in Parliament. My noble friend Lord Onslow has, thankfully, given your Lordships' House that opportunity, and the Government would be well advised to take on board the concerns of noble Lords. The concerns include those mentioned in the report of your Lordships’ Merits of Statutory Instruments Committee, which should give the Government pause. Concerns about the order have come to light elsewhere, but the Home Office does not seem to be particularly bothered. No consultation took place beyond asking the bodies that are to get the new powers what they thought. It is no surprise that they responded "Yes, please". To paraphrase Mandy Rice-Davies, they would say that, wouldn't they? The House will find it quite extraordinary that the police and HMRC were not consulted. Have they been consulted now? The committee also notes that by failing to consult more widely the Government have gone against the spirit of their own guidance on consultation, and I am grateful to the noble Lord, Lord Rooker, for pointing that out. That is far from satisfactory. No wonder we are about to have a Statement on smarter Government. This House prides itself on being a revising Chamber. However, revision is not appropriate for an order of this kind. That is why a better description of what we do is to advise—as my noble and learned friend Lord Howe has done—the Government of the day. The Minister has had such advice this afternoon. Unless we hear a convincing explanation, I am minded to recommend that noble Lords vote to support my noble friend’s advisory Motion, despite the hesitation of my noble friends Lord Campbell of Alloway and Lord Neill, for the simple reason that we know that under this Government there is no going back, and added pressure will be important.