Clause 16: Reports relating to directions under section 13

100.     This clause requires the Secretary of State to prepare and issue a report on the use of his power under clause 13. Any such report must be laid before both Houses of Parliament and the Scottish Parliament.

Clause 17: Inspections

     101.     Clause 17 sets out the arrangements whereby SOCA will be subject to inspection by Her Majesty's Inspectors of Constabulary. It also allows the Secretary of State to initiate an inspection, and places a duty on the Secretary of State to make the report of an inspection public, subject to national security and other sensitivity considerations. Where an inspection covers SOCA's activities in Scotland then HMIC must conduct the inspection jointly with the Scottish inspectors.

Clause 18: Grants by Secretary of State

102.     This clause makes provision for the Secretary of State to make grants to SOCA for each financial year. The amount of and times at which, grants may be paid may be determined by the Secretary of State and can be varied by him. The Secretary of State can also attach conditions to the payment of any grant, such as specifying how the payment or any part of it can be used and requiring repayment in specified circumstances.

Clause 19: Determinations relating to grants under section 18

103.     This clause expands upon the Secretary of State's duty to make grants to SOCA under clause 18. The Secretary of State is required to issue annual determinations on SOCA grants, in the form of a report which sets out considerations underlying the determination. However, it is open to the Home Secretary to make a determination covering two or more years in order to afford SOCA greater financial stability (subsection (2)). A copy of the report must be sent to SOCA and laid before the House of Commons (subsection (6)). Determinations may be varied at any time, but in each case a further report is necessary. The Secretary of State can also require SOCA to provide him with information to assist him in reaching a determination, and he can require such information within a specified period (subsection (7)).

Clause 20: Charges by SOCA and other receipts

104.     The purpose of this clause is to authorise SOCA to charge for any goods or services it provides, for example the provision of training. Save where the Secretary of State otherwise directs, any income accrued by SOCA (other than grant income or borrowings or monies received from the Secretary of State in respect of international joint investigation teams) must be paid over to the Secretary of State, who in turn must pay it into the Consolidated Fund.

Clause 21: Accounts

105.     This clause imposes duties on SOCA governing the keeping of proper accounts and records in relation to those accounts, the preparation of a statement of those accounts for each financial year, and the sending of copies of that statement to the Secretary of State and the Auditor General. The Comptroller and Auditor General is required to examine and certify the SOCA statement of accounts and issue a report to be laid before Parliament.

Clause 22: Operational responsibility of Director General

106.     This clause seeks to enshrine the operational independence of the Director General. It will be for the Home Secretary to set the strategic priorities of SOCA and for the SOCA Board (of which the Director General will be a member) to set other priorities, but thereafter it will be for the Director General to determine which operations to mount and how such operations are to be conducted.

Clause 23: Activities in Scotland in relation to crime

107.     This clause preserves the role of the Lord Advocate in respect of the investigation and prosecution of crime in Scotland. SOCA may only carry out its activities in relation to an offence which it suspects has been committed or is being committed if it does so with the agreement of the Lord Advocate, and in doing so it must comply with all directions received from him or from the procurators fiscal.

Clauses 24 and 25: Mutual assistance between SOCA and law enforcement agencies

108.     Clauses 24 and 25 make provision for a police force, special police force or other law enforcement agency to call upon SOCA to provide assistance and vice versa. Such assistance will usually take the form of the loan of staff but may also take other forms, such as the loan of facilities or equipment. It is expected that the arrangements for the provision of such mutual assistance will be made voluntarily between the parties concerned and clause 24 provides for this. Clause 25 contains a reserve power for the Secretary of State to direct either the Director General of SOCA, or the chief officer of a police force in England and Wales or Northern Ireland or the head of a law enforcement agency (other than the Scottish Administration) to provide mutual assistance where there is a failure to agree voluntary arrangements. Any direction to the Commissioners of HMRC may only be made within the consent of the Treasury (Clause 25 (4)). Any direction to the Police Service of Northern Ireland would, as a matter of practice, be made by the Secretary of State for Northern Ireland.

109.     Where constables or other staff of a police force or law enforcement agency are made available to SOCA under these provisions they will be under the direction and control of the Director General. Similarly, where SOCA staff are made available to a police force or other law enforcement agency, they will be under the direction and control of the chief officer or head of the agency, as the case may be (clause 24(6) and (7)).

110.     Clause 24(8) and (9) make provision for SOCA, police forces and law enforcement agencies to pay for any assistance provided by another party. However, the parties involved in any arrangement for the provision of mutual assistance may decide that there should be no such cross charging. Where this assistance is provided for or by a Scottish police force, SDEA or the Scottish Administration, the Scottish Ministers must first be consulted.

Clause 26: Directed arrangements: Scotland

     111.     Clause 26 provides that in Scotland the Scottish Ministers can direct a Scottish police force or the SDEA to provide assistance to SOCA. Similarly, Scottish Ministers, with the consent of the Secretary of State, will be able to direct SOCA to provide assistance to a Scottish police force or the SDEA.

Clause 27: Use by SOCA of police premises etc.

112.     This clause enables SOCA to use the premises, equipment, facilities or services of a police force in accordance with an agreement made between them or, in the absence of such an agreement, following a direction by the Secretary of State. It is not expected that SOCA will maintain its own custody facilities; accordingly this clause would, for example, allow for the use by the Agency of custody facilities provided by a police force. The Secretary of State may use this power to direct only after notifying the relevant body of his intentions and considering their subsequent representations. Subsection (6) makes provision for SOCA to pay to a relevant police authority for the use of any premises etc., but SOCA and the authority in question may decide that any such premises etc. may be provided for use by the Agency free of charge. This clause only applies to police forces in England, Wales and Northern Ireland. In carrying out its functions in Scotland, SOCA is expected to work closely with the SDEA and any use of police premises etc. will follow the administrative arrangements the SDEA has made with the 8 Scottish forces.

Clause 28: Regulations as to equipment

113.     This clause allows the Secretary of State to make regulations governing the equipment used by SOCA. Subsection (1) enables regulations to be made prescribing the design and performance of equipment provided or used for the purposes of SOCA.

114.     Subsection (2) enables regulations to be made requiring SOCA to use specified equipment, or equipment which is of a description specified, or type approved by the Secretary of State. The type approval of equipment may be made subject to conditions as to its use. The use of specified equipment or equipment of a specified description may also be prohibited under the regulation-making power. Before making any regulations under clause 28, the Secretary of State must consult SOCA and may also consult anyone else he chooses (subsection (3)).

115.     Regulations made under this clause are subject to the negative resolution procedure.

Clause 29: Liability of SOCA for acts of seconded staff etc.

116.     This clause establishes SOCA's liability in respect of any unlawful conduct by persons seconded to the Agency or provided for its assistance under clause 24, 25 or 26. The Bill makes no provision in respect of employees of SOCA because the Agency as the employer will be vicariously liable for any unlawful acts committed by its employees in the course of their employment. Subsection (1) provides that SOCA will be liable for unlawful conduct committed by persons defined in subsection (3) in the carrying out (or purported carrying out) of their functions as members of SOCA staff.

117.     Subsection (2) provides that SOCA will be a joint tortfeasor where such unlawful conduct is a tort.

118.     Subsection (3) provides for clause 29 to apply to any person or constable who has been seconded to SOCA or who has been provided by another body to assist SOCA (in accordance with clauses 24, 25 and 26).

Clause 30: Payment by SOCA of amounts in connection with unlawful conduct of employees etc.

119.     This clause confers on SOCA a power to make discretionary payments in respect of damages and costs arising out of unlawful conduct by a member of the Agency's staff (that is both direct employees, secondees and those provided by another body to assist SOCA).

Clause 31: Application of sections 29 and 30 to members of joint investigation teams

120.     The purpose of this clause is to provide a legal basis for civil liabilities arising from operations of joint investigation teams involving members of SOCA's staff and law enforcement officers from abroad. The United Kingdom is obliged, if it agrees to the setting up of such teams through its participation in international agreements such as the Convention of 29th May 2000 on Mutual Assistance in Criminal Matters between the Member States of the European Union, to provide arrangements for the satisfaction of civil claims that may arise from actions of team members when they are not operating in their own country. These arrangements are intended to provide a firm legal basis for the setting up of such teams which are important in strengthening police co-operation between participating countries by allowing for the speedier and more effective sharing of information and expertise across national boundaries in combating the common threat from serious and organised crime.

121.     The clause extends the liability of SOCA by providing that it is to be liable for any unlawful conduct of members of international joint investigation teams (JIT) formed in accordance with the specified international agreements. The clause also applies clause 30(1) so that SOCA may make discretionary payments in respect of damages and costs arising out of unlawful conduct by a member of such teams. The specified agreements may be added to by an order made by the Secretary of State, subject to the negative resolution procedure.

122.     Subsection (6) provides that where SOCA makes a payment of damages or costs awarded against it for unlawful conduct by a member of a JIT and any reimbursement is made to the Secretary of State under an international agreement for the payment made by SOCA, the Secretary of State must reimburse those funds to SOCA.

Clause 32: Liability of special police forces and law enforcement agencies for unlawful conduct of SOCA staff

123.     This clause establishes special police forces' and law enforcement agencies' liability in respect of any unlawful conduct by a member of SOCA staff who is provided for its assistance under clause 24, 25 or 26. Subsection (1) provides that the relevant authority will be liable for unlawful conduct committed by persons defined in subsection (4) in the carrying out (or purported carrying out) of their functions whilst assisting that agency.

124.     Subsection (2) provides that the relevant agency will be a joint tortfeasor where such unlawful conduct is a tort.

     125.     Subsection (3) confers on the relevant authority a power to make discretionary payments in respect of damages and costs arising out of unlawful conduct by a member of SOCA's staff who has been provided for their assistance.

126.     Subsection (5) defines the relevant authorities to whom this clause applies.

     Clause 33: Use of information by SOCA

127.     This clause ensures that SOCA can use information obtained in connection with any one of its functions to assist it in exercising any of its other functions. For example, information obtained in the course of a criminal investigation may be used in connection with SOCA's function of preventing serious organised crime.

Clause 34: Disclosure of information by SOCA

128.     This clause provides that SOCA may disclose information to any person or body for any of the "permitted purposes" set out in subsection (2)(a) to (e). Under subsection (2)(f) the Secretary of State will be able to add to the list of disclosure purposes by order which will be subject to affirmative resolution. Subsection (3) disapplies any statutory or other restriction on the disclosure of information in respect of any disclosure made by SOCA for a permitted purpose.

     129.     Subsection (4) provides that disclosures of information which contravene the Data Protection Act 1998 ("the 1998 Act"), clause 36 of this Bill, or are prohibited by Part 1 of the Regulation of Investigatory Powers Act 2000 ("the 2000 Act"), are not permitted. Neither the 1998 Act or the 2000 Act impose blanket prohibitions on the disclosure of information. In the case of the Data Protection Act, sections 28 and 29 enable personal data to be shared for the purposes of, amongst other things, safeguarding national security, the prevention and detection of crime and the apprehension or prosecution of offenders. Part 1 of the Regulation of Investigatory Powers Act also allows disclosure of information in connection with an interception warrant, for example where a disclosure is authorised under the terms of a warrant or by the person to whom the warrant was issued. It is also implicit that the provisions of the Human Rights Act 1998 would need to be taken into account before any disclosure is made by a permitted person or body.

Clause 35: Disclosure of information to SOCA

130.     Clause 33 enables any person to disclose information to SOCA where the aim is to assist SOCA in the pursuit of any of its functions (as set out in clauses 2, 3 or 5).

131.     Subsection (4) deals with information provided by the Commissioners of Her Majesty's Revenue and Customs. For information to be passed to SOCA, the Commissioners, or an authorised officer of Revenue and Customs, must authorise the disclosure. This is to ensure that there are safeguards in place to protect sensitive personal information held by this body. As in clause 34, any disclosure made under this clause is not subject to any statutory or other law on disclosure, although the provisions of the Data Protection Act and Part 1 of the Regulation of Investigatory Powers Act apply. It is also implicit that the provisions of the Human Rights Act 1998 would need to be taken into account before any disclosure is made by a permitted person or body.

Clause 36: Restrictions on further disclosure

     132.     The purpose of this clause is to place restrictions on the onward disclosure of information that has been disclosed by SOCA under clause 34 or to SOCA by the Commissioners of Her Majesty's Revenue and Customs. In the case of information disclosed by SOCA to a person or body this information may only be passed on in accordance with the functions of that person or body, for the purpose for which the information was originally disclosed by SOCA, or for any of the permitted purposes listed in clause 34(2). Information disclosed to SOCA by the Commissioners may only be further disclosed where the Commissioners or an authorised officer give their consent, and for the permitted purposed listed in clause 34(2). This consent might relate to one disclosure or several disclosures defined by the consent (subsection (3)).

Clause 37: General duty of police to pass information to SOCA

133.     For SOCA to discharge its functions effectively it must have access to relevant information about crime at local and force level. To this end, this clause imposes a duty on police forces in Great Britain and Northern Ireland, and on special police forces (such as the British Transport Police, Ministry of Defence Police, Civil Nuclear Constabulary and the SDEA) to furnish SOCA with such information.

Clause 38: General duty on police etc. to assist SOCA

134.     This clause places a general duty on any constable, officer of Revenue and Customs, and any members of the armed forces or coastguard to provide assistance to SOCA in the exercise of its functions. A similar duty to assist customs officers is contained in section 11 of the Customs and Excise Management Act 1979.

Clause 39: Directions

     135.     This clause places a duty on anyone to comply with a direction given them by the Secretary of State or the Scottish Ministers under a power provided for in this Chapter. Powers of direction are included in clauses 10 (performance targets), 13 (power to direct submission of action plan), 21 (form of accounts), 25 (mutual assistance between SOCA and law enforcement agencies: directed arrangements), 26 (directed arrangements: Scotland) and 27 (use by SOCA of police premises).

Clause 40: Interpretation

136.     This clause provides definitions and meanings for some of the terminology used in Chapter 1, including the terms "chief officer", "Commissioners", "constable", and "financial year". For the purposes of this Chapter, the definitions of "prevention" and "detection" given in subsection (5) of section 81 of the Regulation of Investigatory Powers Act 2000 apply. That subsection provides that: detecting crime includes—

(a) establishing by whom, for what purpose, by what means and generally in what circumstances any crime was committed; and

(b) the apprehension of the person by whom any crime was committed.

     Chapter 2: SOCA: Special powers of designated staff

Clause 41: Designation of SOCA staff as persons having powers of constable etc.

137.     When a person becomes a member of staff of SOCA, the powers they held in their previous capacity as a constable, officer of Revenue and Customs or immigration officer will no longer be exercisable. Instead, the Director General of SOCA may confer some or all of these powers on a member of staff of SOCA according to the business needs of the organisation (subsection (1)). A designation under this clause may be subject to limitations (subsection (2)). These may relate to the powers exercisable (for example, only some of the powers of a constable may be conferred on a particular member of staff) or to the duration of the designation (it may be time limited or last for as long as the person concerned remains a member of staff of SOCA). Powers may be conferred on a member of staff of SOCA irrespective of whether he has previously held such powers (subsection (4)(b)). It is open to the Director General to augment the powers previously held by a member of staff, for example a police officer joining SOCA on secondment may have the customs powers of a Revenue and Customs Officer conferred on him in addition to the powers of a constable (subsection (4)(a)). However, the Director General must ensure that a person has the capability, aptitude and adequate training appropriate to those powers before a designation is made (subsection (5)).

138.     Subsection (6) provides that where a constable, Revenue and Customs officer or immigration officer becomes an employee of SOCA their previous office is to be treated as suspended. That suspension would be lifted if, say, a member of staff of SOCA who had been a constable returned to work in a police force.

Clause 42: Delegation of power to designate

139.     This clause enables the Director General to delegate his functions (as outlined in clause 41) to any employee of SOCA who is employed in a grade or on a pay scale not lower than a grade or pay scale specified by the Secretary of State by order (subject to the negative resolution procedure).

Clause 43: Modification or withdrawal of designations

140.     This clause provides for the modification or withdrawal of a designation given under clause 41. The Director General may use this power at any time by notifying the designated person. An employee who has been delegated the power to designate under clause 42 may only use this power to modify or withdraw the type of designation they have been authorised to give. For example, a person to whom the power to confer customs officer powers was delegated may not withdraw a designation relating to the powers of a constable. Provided he has the power to act in respect of a particular type of designation, however, a member of staff of SOCA may modify or withdraw a designation even if he did not issue it.

Clause 44: Person having powers of a constable

141.     This clause details the powers that can be exercised by a member of SOCA's staff who has been designated as having the powers of a constable. Subject to any limitations stipulated in accordance with clause 41(2), the designated person will have all the powers and privileges of a constable. By virtue of subsection (3) those powers and privileges will in the first instance only be exercisable throughout England and Wales, although they may be extended to Scotland or Northern Ireland by virtue of the provisions in clause 45.

Clause 45: Person having powers of constable: Scotland and Northern Ireland

142.     This clause explains the conditions under which a member of staff of SOCA may exercise designated powers of a constable in Scotland and Northern Ireland. The agreement of the Scottish Ministers and the Secretary of State (for these purposes it would be the Secretary of State for Northern Ireland) must be obtained before the powers and privileges of a constable may be exercised in the respective parts of the UK (subsections (2) & (5)). The Director of SDEA or an officer nominated by him or, in Northern Ireland, an officer of the PSNI of the rank of assistant chief constable or above may agree to a designated member of staff of SOCA exercising the above powers in relation to a particular operation in the relevant territory (subsections (3) & (6)).

Clause 46: Person having customs powers

143.     This clause enables a member of staff of SOCA who has been designated with the customs powers of a Revenue and Customs officer to exercise relevant customs powers subject to any limitations imposed in accordance with clause 41(2). SOCA staff will only need the powers of an officer of Revenue and Customs in respect of non-revenue matters, for example, the illegal importation of drugs or firearms; as a result the power to confer the powers of a Revenue and Customs officer on a member of SOCA's staff is limited to power in respect of "customs matters". The definition of a "customs matter", in subsection (7), is such as to exclude matters which are currently the responsibility of the Inland Revenue (these are set out in clause 6 of the Commissioners for Revenue and Customs Bill) and the fiscal matters which are currently the responsibility of HMCE and are listed in Schedule 1 to that Bill (for example VAT and fuel duties). A number of powers of a customs officer (for example the seizure powers in section 179 of the Customs and Excise Management Act 1979) may be used both for revenue purposes and for the purposes of enforcing various prohibitions on importation (for example, of illegal drugs). Subsection (5) provides that in such cases the powers may only be exercisable in respect of non-revenue matters, thereby preserving the primacy of HMRC for all revenue matters.

Clause 47: Person having powers of an immigration officer

144.     This clause enables a member of staff of SOCA who has been designated with the powers of an immigration officer to exercise all of the powers of an immigration officer (as defined by the Immigration Act 1971) subject to any limitations imposed in accordance with clause 41(2).

Clause 48: Designations: supplementary

145.     This clause places a duty on any member of staff of SOCA designated with the powers of a constable, customs officer and/or an immigration officer under clause 41 to produce evidence of his designation when asked to do so by someone in relation to whom he intends to exercise these powers (subsection (1)). A failure to produce evidence of designation does not invalidate the exercise of any powers (subsection (2)). Subsection (3) ensures that SOCA is liable for any unlawful conduct of any member of SOCA's staff arising from the misuse of the powers conferred by a designation.