Serious Crime Bill [Lords]

Steve Barclay Excerpts

Monday 23rd February 2015 Commons Chamber

[Stephen Barclay (North East Cambridgeshire) (Con)]

I find the shadow Minister’s response to my hon. Friend quite staggering. She made the same point about new clause 28, which I have tabled. Is it seriously the Opposition’s case that 31 days is sufficient time to investigate multimillion-pound suspicious activity reports such as that in the case of OPL 245?

[Diana Johnson]

I want to hear the comments that the hon. Gentleman and the hon. Member for Esher and Walton will make about their new clauses. Time is limited, and on the instructions of Mr Speaker I am trying to keep my comments short. I am pointing out that there may be unintended consequences of how the clauses are currently drafted.

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[Mr Raab]

I welcome the shadow Minister’s intervention and she has got half a point, but the thing is that I have been nailing those on my Front Bench on this for three years and the difference is that they have stuck to their line fairly consistently whereas literally in the last month the leader of the Labour party has gone on record—his advisers have been trailing it liberally after the glitzy Hollywood dinner with the Clooneys—saying that actually he would go for a UK Magnitsky Act, but when push comes to shove it is nowhere to be seen. This raises a whole question about the Labour party having the courage of its convictions. So I have made this point to Members on my own Front Bench, but I also think the shadow Minister needs to be responsible for her own position and her own party’s position—and, indeed, answer for what the leader of the Labour party has trailed widely in the media.

Coming back to the substance of this, it is also worth remembering that in cases of extradition or deportation there is already a huge amount of transparency over both the policy and who is being removed. As a result, there is intense and legitimate scrutiny of Government policy. So if the public have the right to know whether the Government intend to remove the likes of Abu Qatada, why should they not equally be told whether we are banning such people from coming here in the first place? If we are serious about trying to alter Putin’s behaviour, should we not start by making sure that those who bankroll him cannot enjoy the fruits of their labour here, clandestinely in luxurious comfort? Those individuals who bankroll Putin and his like should know that when they cross the line and engage in serious international crimes, their association with him and support for him will bar their ability to enjoy the luxurious Knightsbridge lifestyle that so many of them crave. To ensure that message hits home consistently and publicly, we need transparency over such visa bans.

This new clause does not single out Russia. It would apply to any individuals linked to terrorism, violent extremism, gross violations of human rights law, money laundering and other serious organised crime, whatever their nationality and wherever they take place.

[Stephen Barclay]

Is a further reason why we need transparency that there is very little transparency around the beneficial ownership of multimillion pound property in London? For example, a respected non-governmental organisation estimates that 45% of London property valued at above £2 million is owned offshore where the beneficial owner is opaque. If those who have profited through torture and corruption are able to own London property, it is even more important to be transparent about whether they are travelling here.

[Mr Raab]

My hon. Friend is absolutely right. We need to shine a light on the murky mafia-related activities that are infecting our country through the acquisition of property and also by the physical entry of individuals into this country.

This amendment would also make an important statement about British foreign policy, particularly as inevitably in the 21st century we have to rub along with, deal with and engage with Governments who do not respect the same standards of liberal democracy as we do here in Britain. I am a realist and I recognise that we will have to engage with regimes with a dubious commitment to human rights or the rule of law, but there ought to be some moral red lines here. People carrying dirty money and individuals with blood on their hands should not be welcome on the streets of Britain. This is not just a question of moral principle. Sooner or later, if we keep allowing such unsavoury characters into the UK, bringing all their baggage and vendettas with them, we risk finding that it is British citizens who are caught in the crossfire or worse. After all, the Litvinenko inquiry has already heard that Putin’s thugs were willing to engage in nuclear terrorism here in public, so the threat to the British public is real and serious.

I remain convinced that Britain should enact a Sergei Magnitsky law, like the Americans, with mandatory visa bans and asset freezes imposed on people linked to the worst international crimes. In the meantime, at the very least we need to shine a light on the exercise of existing UK powers to deny entry or visas to the shady characters who prop up Putin, or indeed any other despot around the world.

This new clause does that. It would allow a temporary delay in disclosure of the identity of anyone banned if necessary for national security or law enforcement, and it would not alter the substantive scope of any existing powers, but it would ensure that they are exercised consistently, and it would ensure that the public are told whom we ban from Britain. I commend new clause 18 to the House.

[Stephen Barclay]

I rise to speak to new clause 28, tabled in my name, which is much more modest than the new clause tabled by my hon. Friend the Member for Esher and Walton (Mr Raab). It is simply about giving law enforcement more time in respect of multimillion pound money laundering cases.

At present around 316,000 suspicious activity reports are filed each year with law enforcement agencies. Those are cases where the banks, the lawyers or the accountants have serious concerns around money laundering. According to the Home Office’s own figures, between £23 billion and £57 billion are being channelled through the UK economy each year, so we know the scale of money laundering is significant. At present, when a suspicious activity report is filed the law enforcement agencies—the National Crime Agency has now taken on this responsibility —have just seven days to say whether they give consent to those multimillion pound transfers going ahead. That is just seven days on a case that might well have been built over many years, often involving jurisdictions where information is difficult to obtain, and if law enforcement decides it does not wish to give consent to these transactions, which the financial institutions themselves have said look suspicious, they have just 31 days to build the case to the satisfaction of the courts. If they fail to do so, they risk the penalty of costs against them, which sets a strong disincentive to law enforcement to take those cases forward. To put that in context, the proceeds of crime unit investigated only 110 cases from the 316,000 suspicious activity reports filed with it, so clearly the system is not working.

I thought I would give just one case to bring this to life. The Nigerian case OPL 245 has a bit of a jargony name, but it involves $1 billion paid by a British oil company for some offshore land in Nigeria with oil assets. To put this in context, $1 billion was paid for this land for drilling—they do drill offshore, I should point out for the benefit of any Members who might be confused as to how they obtain the oil—yet 14 years earlier this land was granted to a company owned by the then Nigerian oil Minister. In essence the land was granted by the Nigerian oil Minister to a company that he owned and for which $1 billion was then paid 14 years later. In investigating that case that had developed over many years involving complex financial arrangements over different jurisdictions, law enforcement has just 31 days to build a case that would block the transfer of $1 billion that is going to a corrupt official and his henchmen.

New clause 28 simply seeks to give law enforcement agencies more time to build their case. I shall not press it to a vote, but I hope that the Minister will tell us whether the Government believe that the current arrangements provide sufficient time, or whether they accept the substance of the new clause, which is that the current arrangements are insufficient and that they load the dice against law enforcement, meaning that corrupt assets can be transferred from the UK to criminals. If the Government accept my proposal, I hope that they will change the law at the earliest opportunity to create a more level playing field by giving more time for these complex, multi-jurisdictional cases to be investigated.

[John McDonnell (Hayes and Harlington) (Lab)]

I am in a state of confusion, so am here as a humble searcher for the truth on these matters. I know that the programme motion was not moved, but I am interested in discussing Government new clause 24 and new clauses 4 and 5. As secretary of the National Union of Journalists group in Parliament, I have been trying for the past year to get some clarity on the protection of journalistic sources. We have dealt with this matter under the Regulation of Investigatory Powers Act 2000 and the Data Retention and Investigatory Powers Act 2014, and now we are dealing with it under this Bill. I apologise for having bored the House on the matter at times. Sometimes I have been in the Chamber talking about it almost all on my own. We are now coming to the conclusion of this legislation, at least before the general election. I appreciate that the Government have said they will return to the matter after the election.

I am unhappy with all the amendments that have been tabled, from all sides. There are three principles on which the NUJ has been campaigning—in relation to RIPA, DRIPA and this Bill—in regard to applications for access to information on journalistic sources by the police, the intelligence services or anybody else. We have discovered that a large proportion of applications have come from people in that last category—“anybody else”—in recent years, including even local authorities. The first of the three principles that the NUJ has been trying to establish is that there should be an independent process with judicial authorisation to protect professional communications. The second is that there should be automatic and mandatory prior notification of requests. The third is that there should be mechanisms in place to challenge an application, along with the right of appeal.

As I said, I am here as an honest searcher for the truth. As far as I can see, none of the amendments tabled by the Government and others satisfies all three conditions. The first is satisfied, in that there will be at least a form of the judicial authorisation for which we have been arguing for at least 12 months. However, I can see no mention in the amendments of automatic and mandatory prior notification of the requests to the parties involved. With regard to data communication and collection, I see that there has been mention of notifying the company that has collected or retained the data, but there does not seem to be a proposal for a process by which the individual journalist would be notified. Journalists do not seem to be party to these proposals at all. As a result, there seems to be no mechanism for their views to be represented when the judicial authorisation is being sought, or for them to challenge the proposal or the court’s decision on the protection of their sources.

At the moment, none of the amendments satisfies those three criteria. I would welcome the Government’s response, because I know that they are proposing to introduce detailed amendments in future legislation. I would welcome information on whether such amendments would deal with the two other criteria. I can see that judicial authorisation is being addressed, but would the questions of prior notification and the right of appeal also be covered?

The Government have argued that amendments tabled by others related solely to serious crime and not to other matters, and that they do not encapsulate all the recommendations in the recent report. I understand that argument, but the Government are still not putting forward any proposals about the use of the Police and Criminal Evidence Act 1984—PACE—in relation to the way in which production orders are applied for. This was how the whole argument started. At the moment, if a production order is applied for under PACE, the journalist is informed in advance about the order. They are then able to put their case in court and, if necessary, appeal it and have it judicially reviewed. That does not seem to be the process that is being suggested here.

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[Sir Edward Garnier]

As my father used to say, Madam Deputy Speaker, “There is no point in having two clocks if they both tell the same time.”

I want briefly to respond to what my hon. Friend the Member for North East Cambridgeshire said about his new clause 28. Having spent quite a lot of my time as a Government Law Officer and having subsequently taken an interest in financial crime, I was much taken by what he had to say. My only suggestion would be that, rather than limiting himself to a further 31 days, he should propose—

[Stephen Barclay]

It was proposed more to make a point.

[Sir Edward Garnier]

My hon. Friend is unnecessarily modest in his ambitions. Instead of proposing 31 days, he might have proposed any such other period as the court might think just in all the circumstances. The thrust of his argument is, however, unassailable and I wish him well with his discussions with the Government. New clause 28 makes a good deal of sense.

I am honoured to be a co-signatory to new clause 18, particularly having just heard the speech by my hon. Friend the Member for Esher and Walton (Mr Raab). He has experience not only as an international lawyer but as someone who has prosecuted in some pretty terrible cases dealing with crimes in the former Yugoslavia. When he speaks, we should listen, pay attention and follow what he has to say, and what he had to say tonight was unimpeachable. I stress, as he did, that if we are to exclude people—be they foreign nationals or, under the current legislation, our own nationals—we should know who they are. Secret justice is not justice.

The new clause contains a proposed new subsection that would allow the Secretary of State to defer publication of the name of the excluded person on particular grounds. I suggest that that proposal would deal with any problems that anyone might suggest the new clause could create. The reason he has never received a cogent answer to his questions to Ministers and officials is that there is not one, and he has highlighted that. The Government should therefore have a little think about what he had to say and what is contained in his new clause.

I would say only one thing about new clause 24, and I am sorry that the hon. Member for Hayes and Harlington probably will not agree with me on it, albeit that we are both pretty keen on the freedom of the press. The code of practice would be an altogether more attractive concept if I could actually read it and see what it said before this thing came into legislation. The Minister properly spoke about the time limits surrounding us as we move towards the general election in May, but I used to complain in opposition, I complained in government and I complain now that secondary legislation, statutory instruments and codes of practice are subsidiary rules that hang in locked boxes from legislative trees and are not a good thing. If we are to persuade people that this measure is a good thing, we should have sight of the code of practice as soon as possible. I know that Ministers never want to commit themselves to time schedules, but this is an example of where, before the general election and before this Bill becomes an Act, we should see the fruits of the consultation process and what the code of practice should look like.

Finally, and with a degree of diffidence, I wish to discuss new clause 23. When I intervened on the Minister to ask what offences the new clause would add to, I was not given an answer—well, I was given an answer, but not to the question I asked. I was not surprised by that, because I, like my hon. Friend the Member for Esher and Walton, suspect that there is not an answer. This is what I call an early-day motion new clause. It is what is called, “Government sending out a message.” Governments can send out messages, but they do that on television, on the radio and in the newspapers, and they get their spin doctors to do it; legislation is supposed to be clear, non-repetitive and able to be clearly understood by the prosecuting authorities, the police, the courts and those who might be tempted to commit the offence that the clause hopes to describe.

I assume that an offence of “Throwing articles into prisons” is intended to prevent or persuade people not to throw caches of drugs, razor blades, mobile telephones and other contraband over prison walls or into prison property—so far, so good. We all know that that is already a crime, not just under the Prison Act 1952, but under various other pieces of criminal legislation. To take a ludicrous example, if I were to throw a copy of the Prison Act 1952, as amended, over the walls of Gartree prison in my constituency, would I be caught by this? On the face of it I would and I would be liable, on indictment, to a term of imprisonment

“not exceeding two years or to a fine (or both)”.

Sadly, the magistrates court does not exist in Market Harborough any more and I would have to be carted all the way to Leicester to be, on summary conviction, imprisoned for up to 12 months or given a fine.

It appears from the new clause that if I were to throw not “The complete works of William Shakespeare”, because that is a heavy volume, but a Shakespeare play over the prison wall, I would be committing an offence. I went to 65 of the prisons in England and Wales when I was a shadow spokesman responsible for prisons in the period leading up to the 2010 election, but I never went into or came out of a prison, young offenders institution or secure training unit without being wholly aware of the notices on the gates setting out what it was unlawful to bring into those places. Even though it might be suggested that lobbing a benign article such as “The complete works of William Shakespeare” over the prison wall was something done with an overriding public interest or with some other legitimate excuse, I do wish we could stop passing legislation that already exists just because it feels like a good thing to do. If we are going to take up the time of Ministers and officials in drafting this sort of stuff, why do we not draft something useful like new clause 18, proposed by my hon. Friend the Member for Esher and Walton, and get that into legislation, rather than this sort of guff?