Proceeds of Crime Bill

Public Bill Committee, 22 November 2001.

Standing Committee B

Proceeds of Crime Bill

Roger Gale (Conservative, North Thanet)

I remind the Committee that with this we are taking the following amendments: No. 51, in page 5, line 37, leave out

`make the following four assumptions'

and insert

`follow the following four criteria'.

No. 52, in page 5, line 41, leave out `assumption' and insert `criterion'.

No. 53, in page 6, line 1, leave out `assumption' and insert `criterion'.

No. 54, in page 6, line 5, leave out `assumption' and insert `criterion'.

No. 55, in page 6, line 8, leave out `assumption' and insert `criterion'.

No. 56, in page 6, line 11, leave out `make a required assumption' and insert `follow any such criterion'.

No. 26, in page 6, line 13, leave out paragraph (a) and insert-

`(a) The Director does not lead sufficient evidence to establish the assumption on the balance of probabilities; or

(aa) The defendant leads evidence to entitle the court to refuse to make the assumption; or'.

No. 34, in page 6, line 13, leave out paragraph (a) and insert-

`(a) the defendant adduces evidence which is sufficient to raise an issue with respect to the matter and the prosecution fails to prove its case on the matter.'.

No. 57, in page 6, line 13, leave out

`assumption is shown to be incorrect'

and insert

`criterion is shown to be inapplicable'.

No. 58, in page 6, line 14, leave out `assumption were made' and insert `criterion were followed'

No. 76, in page 6, line 14, at end insert-

`(c) there is no rational connection between the facts proved in proceedings leading to the trigger convictions and the facts adduced for consideration of the assumptions.'.

No. 59, in page 6, line 15, leave out from `not' to `it' and insert

`follow one or more of such criteria'.

Question again proposed, That the amendment be made.

Roger Gale (Conservative, North Thanet)

Good morning, ladies and gentlemen. As Mr. McWilliam said at our previous sitting, given the change in the grouping of amendments during the debate on Tuesday, the Chair will accept Divisions, if necessary, on amendments Nos. 26, 34 and 76 in addition to amendment No. 24.

Norman Baker (Liberal Democrat, Lewes)

I assure the Minister that I shall not press amendments Nos. 24 and 26 to a Division. I was pleased to hear him refer on Tuesday afternoon to his idealism. He said that he genuinely wanted to make a step change. I believe that his motives are laudable. He wants to make a difference while he is in office. That has been the cry of Ministers down the years. Some succeed; others do not. I caution the hon. Gentleman, however, that in his desire to make a difference, he should not always to seek to write the judiciary out of the script. It is tempting to say, ``Here is an obstacle to my objective, and I shall just move it out of the way.'' That attitude lead to Lady Thatcher abolishing the GLC-[Interruption.] I believe that Conservative Members are agreeing with my analysis.

Nick Hawkins (Conservative, Surrey Heath)

On a point of order, Mr. Gale. Surely the acoustics in the Room are good enough for the hon. Gentleman to hear my hon. Friends and me objecting to his remarks, and saying that abolishing the GLC was one of Lady Thatcher's wisest decisions.

Roger Gale (Conservative, North Thanet)

I am not entirely sure that that is a point of order for the Chair.

Norman Baker (Liberal Democrat, Lewes)

I draw to the Minister's attention the fact that yesterday we had an extremely interesting debate on the Anti-Terrorism, Crime and Security Bill. One of its clauses was headed ``Exclusion of legal proceedings''-a drastic title-and he will have noted that about 30 of his Labour colleagues decided that that was a step too far. However, it is important to be honest, and I must say that the Minister made a persuasive case when he responded to the amendment. I was especially pleased with his assurance about the balance of probabilities. It is important to say when one is convinced of an argument, so that when one is not it carries more weight. On the basis of the Minister's persuasive argument, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Norman Baker (Liberal Democrat, Lewes)

I beg to move amendment No. 25, in page 6, line 1, after `property', insert

`transferred to the defendant after the relevant day and'.

The amendment is relatively simple, and I look forward to the Minister responding to it positively. It is an attempt to tighten the wording under subsection (3) to ensure that it has no unintended effect and specifies the period to which the clause relates. As drafted, the Bill has the capacity to confiscate property that has no feasible connections with a criminal lifestyle, notwithstanding the fact that the burden of proof is on the defendant to displace the assumption when it could be applied to property that has been in his family for generations.

The phrase ``the relevant day'' appears throughout the clause, including in subsections (2) and (4), but not in subsection (3). Why is it missing from that subsection? That might be a drafting error. Subsection (3) is unnecessarily wide and could have an unintended effect. Does the Minister share my view?

Nick Hawkins (Conservative, Surrey Heath)

Before I speak to the amendment, may I echo the comments of the hon. Member for Lewes (Norman Baker) on the previous group of amendments?

Roger Gale (Conservative, North Thanet)

No.

Nick Hawkins (Conservative, Surrey Heath)

Given that we may not have a stand part debate, I shall talk about the general concept to which the amendment relates. Conservative Members appreciate that on Tuesday afternoon the Minister gave a serious response, although we do not agree with everything that he said. I understand that although the amendment was moved by the hon. Member for Lewes, because his name was first on the amendment paper, it is open to Conservative Members to ask for a separate vote on amendments that relate to the word ``criterion'' before we reach the stand part debate. Am I right in that understanding, in light of your earlier ruling, Mr. Gale?

Roger Gale (Conservative, North Thanet)

I thought that I had clarified the position at the start of this morning's sitting. In case any hon. Members were not present and did not hear that announcement, Mr. McWilliam has made it plain, and I have agreed, that if necessary there will be separate Divisions on amendments Nos. 26, 34 and 76.

Nick Hawkins (Conservative, Surrey Heath)

That was what I thought that I heard you say, Mr. Gale. I was present, and I did hear you, but I wanted to clarify my understanding. Conservative Members will ask for separate votes.

On amendment No. 25, we share the anxieties that the hon. Member for Lewes described. Once again, the reputable organisation Liberty has expressed anxieties about the provision. In suggesting the wording of amendment No. 25, it said that there should be an opportunity to prevent the assumptions-if, as the hon. Member for Lewes says, we are still using the word ``assumptions''-from applying to property that has been in the defendant's possession for more than six years. That relates to one of our discussions on Tuesday afternoon, and I believe, Mr. Gale, that it was one of the reasons that led your co-Chairman, Mr. McWilliam, to alter the grouping of the amendments. Like Liberty, we are worried that the Bill allows the confiscation of property that has no feasible or rational connection to the alleged so-called ``criminal lifestyle''-a phrase with which we do not agree, but it appears in the Bill-which would trigger the confiscation procedure.

I do not want to go back over old ground, Mr. Gale, and you would stop me if I did. However, I must point out to Labour Members that we have a perfectly genuine anxiety. In his remarks on Tuesday afternoon, the Minister understood that we were raising serious matters, although he did not agree with us about them. We are suggesting that if we align the second assumption to the same time scale as property transfers in subsection (2), and expenditure in subsection (4), the rational basis for making assumptions will be further enforced.

All Committee members want to ensure that the Bill makes a rational and proportionate response. We are not trying to undermine its purpose, but we do not want injustice. We want some rationality. I do not want to labour the point, so that is all I want to say about the amendment; I agree with the comments of the hon. Member for Lewes.

Bob Ainsworth (Labour, Coventry North East)

The amendment would apply the assumptions-or criteria, as Opposition Members prefer to call them-only to property transferred to the defendant less than six years before proceedings commenced. The Bill allows us to make the assumptions about property held by a defendant without any need to show when it was received.

A fundamental characteristic of the Bill's criminal lifestyle confiscation procedure is that the court recovers the proceeds of a defendant's criminal conduct-not his ancestors' criminal conduct-which may have taken place at any time. The amendment would place beyond confiscation proceeds that were received more than six years before proceedings commenced. The Opposition seek what amounts to an amnesty for all proceeds gained more than six years before proceedings commence. We do not think that that is acceptable. In every case, the director or prosecutor would have to prove that the property had been received or spent by the defendant in the six years before proceedings commenced.

Norman Baker (Liberal Democrat, Lewes)

I am slightly worried by the Minister's response. The onus is on the person who is assumed to have received the proceeds of crime. Is that person not being set a very high test if he or she wishes to demonstrate that what the prosecuting authorities believe to be the proceeds of crime was acquired legitimately, perhaps 25 or 30 years ago? It would be difficult for the person charged to prove that he or she acquired that property legitimately, given the time span.

Bob Ainsworth (Labour, Coventry North East)

I assure the hon. Gentleman that subsection (3) replicates the law as it applies now; we have not changed it. We have not made an error in drafting the passage, as he suggests. The amendment would create a burden to disregard the assumptions in the case of property acquired six years before proceedings commence. I do not know whether the hon. Gentleman intends that all such property should be put beyond the Bill's reach, and that there should be an amnesty-but that would be the consequence of his amendment.

Norman Baker (Liberal Democrat, Lewes)

I hear what the Minister says. I accept that subsection (3) replicates wording that already exists, but I would be grateful if he would respond to the thrust of my previous intervention.

Bob Ainsworth (Labour, Coventry North East)

The assumptions do not require a defendant to prove that property that left his ownership more than six years ago was not the proceeds of crime. They require that he prove that property in his possession is not the proceeds of crime, no matter how long ago he received it.

Mr. Hawkins rose-

Mr. Dominic Grieve (Beaconsfield) rose-

Bob Ainsworth (Labour, Coventry North East)

I give way to the hon. Member for Surrey Heath (Mr. Hawkins).

Nick Hawkins (Conservative, Surrey Heath)

I am not sure whether my hon. Friend and I were going to make the same point, but the Minister's use of the word ``amnesty'' is both somewhat inaccurate and somewhat provocative, because we do not think of the issue in that way. The Minister may have genuinely failed to understand our argument. I accept what he said about replicating current provisions, but the Bill introduces wider powers and much more draconian arrangements, so it is no good answering that the same wording was used in previous legislation.

The Bill puts the burden on the defendant. Courts commonly use a six-year limitations period when considering events. Does the Minister not understand that it is difficult for any defendant to prove what happened more than six years ago?

Bob Ainsworth (Labour, Coventry North East)

No, I do not accept that. Every time an amendment is moved to make the confiscation of proceeds of crime more difficult, the excuse for that, and the reason for not replicating the existing legislation, is that the provision in the Bill can no longer be enforced because the process is wider than before. Repeatedly, amendments are moved that would make the confiscation of proceeds of crime more difficult, rather than easier. The hon. Gentleman is right to say that we want to give power to the courts and, in some cases, guide the courts about what they should do when confiscating proceeds of crime. We want the courts to apply such powers widely to all proceeds of crime.

We are tightening the provisions of existing legislation when that is justified, and when we do not believe that that is necessary, we are replicating existing legislation. There are one or two provisions in the Bill through which we are making things clearer and strengthening the provisions that are applied to the defendant. However, we are not making the confiscation of proceeds of crime more difficult. I am sorry that the hon. Gentleman considers my use of the word ``amnesty'' provocative, but that would be the effect of the amendment.

Steve McCabe (Labour, Birmingham, Hall Green)

The curious thing is that unless the hon. Member for Surrey Heath is a serial collector, what he said is utterly absurd. The concept that any individual, particularly an individual with a bank of accountants and solicitors at their disposal, could not account for their acquisitions of significant value over six years is utterly absurd. Is there any prospect that any person in this country could not account for where they acquired goods of a reasonable value?

Mr. Grieve rose-

Steve McCabe (Labour, Birmingham, Hall Green)

Perhaps the hon. Gentleman is a serial collector, too, and has so many goods that he cannot account for them. However, that is not typical of most people.

Bob Ainsworth (Labour, Coventry North East)

My hon. Friend-and the Opposition-should not forget that the Bill provides that the court must bear any risk of serious injustice in mind.

Dominic Grieve (Conservative, Beaconsfield)

The Minister is missing the point. There are currently legal requirements for individuals to keep records-in respect of the Inland Revenue. The period for which records are required to be kept is six years prior to a particular date. It is unlikely that accountants, or anybody, will have information from before that. The Minister has a sort of fail-safe device, because subsection (6)(b) allows discretion if

``there would be a serious risk of injustice if the assumption were made.''

I fail to see how anything beyond the six-year period would not fall foul of that provision in any event. I will be interested to hear the Minister reconcile that with the provisions of subsection (3).

Bob Ainsworth (Labour, Coventry North East)

The court may use the provisions in subsection (6)(b). It can say that it will not make the assumptions because to do that would cause a serious risk of injustice. That is what courts may do under current legislation. [Interruption.] I am perturbed that hon. Members continue to be outraged by my opinions.

Nick Hawkins (Conservative, Surrey Heath)

May I try once more to explain the matter to the Minister, and end his perturbation? We are not outraged but mystified that he does not understand our point. When he responded to the hon. Member for Birmingham, Hall Green (Mr. McCabe) and me, he said that the Opposition were constantly trying to protect the proceeds of crime. In this case, the Minister has made an assumption that the assets have already been established as the proceeds of crime. However, we are saying that at that point it has not been established that they are the proceeds of crime-and the onus is on the defendant to show that they are not. Therefore, the Minister cannot make that assumption-and if the hon. Member for Birmingham, Hall Green thinks that everyone keeps records that stretch back more than six years, he must have a much larger filing cabinet in his house than I have in mine.

Bob Ainsworth (Labour, Coventry North East)

I realise that the hon. Member for Beaconsfield (Mr. Grieve) has other business to attend to in the House, which is why he was in and out of the Committee on Tuesday, but I thought that I had explained the Government's intentions clearly.

There is a reverse burden on people who have criminal lifestyles. They are required to be able to rebut the assumptions-although safeguards with regard to that are provided in subsection (6). I have consistently said that that is our intention; I am not trying to deny it. I continue to be surprised that the Opposition fail to connect with the idea that criminals are adept at concealing the criminal origin of their property. Often, there is no paper trail; their property may materialise out of nowhere, with no indication of the date when they received it, and the prosecutor can prove only that it is owned by the defendant.

The effect of the amendment would be to make it difficult, in many cases, to confiscate the proceedings of crime; it would provide an amnesty for any property received. The hon. Member for Surrey Heath shakes his head, but I am right. I therefore ask the hon. Member for Lewes to withdraw the amendment, and if he does not, I ask Labour Members to vote against it.

Dominic Grieve (Conservative, Beaconsfield)

I understand the Minister's point, but he has failed to respond to ours-although I am unsure whether that was deliberate. Therefore I will briefly spell out the difference between the old and the new regimes.

Paragraph 4 of the explanatory notes to the Bill contains a definition of the existing regime:-

``Confiscation orders are available following a conviction. The purpose of confiscation proceedings is to recover the financial benefit that the offender has obtained from his criminal conduct. The court calculates the value of that benefit and orders the offender to pay an equivalent sum . . . Proceedings are conducted according to the civil standard of proof, i.e. on the balance of probabilities. In certain circumstances the court is empowered to assume that the defendant's assets, and his income and expenditure from any time after six years before proceedings were brought, have been derived from criminal conduct and to calculate the confiscation order accordingly.''

Therefore, the existing regime is ultimately controlled by the nature of the offence for which a person has been convicted. I do not think that the Minister will disagree with that, but, if I have got it wrong, I hope that he will correct me-[Interruption.]

Roger Gale (Conservative, North Thanet)

Order. I know that it is occasionally necessary for the usual channels to communicate with those on the Back Benches, but I cannot allow private conversations to take place in the Committee.

Dominic Grieve (Conservative, Beaconsfield)

As I was saying, the existing structure is controlled by the nature of the offence. I accept that it is possible-and desirable-for the court to go back and look at many other assets, but ultimately, the lack of connection with the offence for which the person is being convicted will mean that those assets are unlikely to be seized.

However, the Minister wants to provide a much wider structure. He does not want merely to look at the assets that are in some way connected with the offence for which the person has been convicted-as happens now. The convictions are merely a trigger mechanism for a much wider confiscatory framework that will enable a person to be branded as having a criminal lifestyle, at which point all his assets, irrespective of whether they appear to have an immediate causal link with the offence for which he has been convicted, can be removed. The Minister has never disagreed with the idea that it would therefore be possible, when a serious criminal had escaped all convictions except minor ones, to use those minor convictions, which appeared totally unrelated to his assets, as the trigger to get to those assets. I have no disagreement with that, but that is the prospect that we are dealing with.

Given how wide-ranging the power will be, there appears to be a serious danger that an injustice could be committed. The Minister may say that he does not really mind if an injustice is committed, because somebody who has been labelled as criminal is of no concern to him. [Hon. Members: ``Shame.''] The tone of some of the comments during this debate has suggested that once one has passed the threshold of being branded for one's criminal lifestyle, one is a lower form of life, which should be stamped on. I am all in favour of stamping on some people, but even lower forms of animal life are entitled to some form of safeguard, and I do not think that those who drafted the Bill intended to confiscate assets other than those that were criminally acquired.

Bob Ainsworth (Labour, Coventry North East)

That is what it says.

Dominic Grieve (Conservative, Beaconsfield)

But then the draftsman has included provisions such as subsection (3), which, given the nature of the evidence available and the reverse burden of proof, must make it extremely likely that exactly that will happen. The Minister, and one or two other hon. Members, say that solicitors and accountants will be involved, but with the reverse burden of proof, proving or showing where an asset that may have been given to him or legitimately acquired 20 years ago, came from, will be astonishingly difficult for the person on whom that burden has been placed-[Interruption.] If the hon. Member for Birmingham, Hall Green has something to say, I shall give way to him.

Steve McCabe (Labour, Birmingham, Hall Green)

I was simply making the point that if the article in question is of value, why should it be so difficult to prove where it came from? Does everybody have a succession of hidden aunties, who disappear off the face of the globe after distributing their largesse? That is extremely unlikely. Someone who has an article of real value should be able to give a reasonable plausible explanation of how they acquired it. Why is that an outrageous assumption?

Dominic Grieve (Conservative, Beaconsfield)

Let us take two examples. The first is a chattel-a valuable item such as a painting or silver, which I accept are much used for money laundering. If somebody asked me for the proof of how and where I acquired a valuable item 15 years ago, I might be able to say where I got it from, but I would have great difficulty providing documentary evidence of the transaction to support what I said. The receipt is likely to have gone into the bin some time ago. The other problem that would arise is that the person from whom I purchased it, who would be the next point of reference, would also be unlikely to have supporting documentary evidence. My loft is already overburdened with stashes of tax papers from every year that I practised as a barrister, and I cannot describe the moment of happiness when, the seven years having expired, I take a year's papers outside and put them in the bin. Each one is labelled year by year, because otherwise, the loft would be full of mounds of paper that were used as the basis for my tax return in any given year. People do get rid of their papers legitimately.

David Wilshire (Conservative, Spelthorne)

It might not be only my hon. Friend's loft that was full after for seven, eight or nine years: the contents of my loft would fall through to the ground floor if I did not clear it out.

Dominic Grieve (Conservative, Beaconsfield)

Indeed. People do not keep documents indefinitely. Yet, the provision places a burden on someone to show that assets were inherited or given to them 25 or 30 years earlier.

Steve McCabe (Labour, Birmingham, Hall Green)

Unless I have misread the Bill, there is no requirement to produce a receipt, merely to provide a plausible explanation of when the goods were received. Let us suppose that the hon. Gentleman brought a painting 20 years ago. Even if he could not produce the relevant receipt because he had chucked it out, it would be possible to contact the reputable dealer who had sold the painting to him.

Dominic Grieve (Conservative, Beaconsfield)

That is not necessarily so. I have been involved in family law cases and tried to find out from where various assets came. I know from such experiences how difficult it is to obtain the material to prove the origin of certain assets. That is a fact of human life. If the assets were obtained six months ago, there would be no problem, but if they were obtained eight, nine or 10 years ago people would be at a disadvantage. The records of such transactions are not always easily obtainable.

Nick Hawkins (Conservative, Surrey Heath)

I shall cite an example that may assist my hon. Friend, and might even convince the hon. Member for Birmingham, Hall Green of our argument. Members of Parliament are often asked by their constituents to take a matter up on their behalf. We ask them whether they have the paperwork to support their case, and even if it goes back only six months or a year, the constituents often reply, ``I'm terribly sorry, but I don't keep anything like that.'' I am referring to matters that are important enough to be brought to the attention of a Member of Parliament.

Dominic Grieve (Conservative, Beaconsfield)

Let us suppose that a person has £20,000 in a bank account-a nest egg built up as a result of income from employment. He has received his P45s, and the salary has been going into his account, but the last time a payment was made was 12 or 15 years ago. From my knowledge of banks, that person is likely to have considerable difficulty obtaining the bank statements from 15 years ago to show that the money was legitimately paid into his bank by his employer. Unless he had kept the statements, he would have great difficulty in proving his case.

Steve McCabe (Labour, Birmingham, Hall Green)

I am sorry to keep arguing the point, but the hon. Gentleman is being absurd. No one expects the individual to produce a receipt. It would be possible to contact the employer, who could say that the money was paid legitimately. Why is so difficult for the hon. Gentleman to accept that what is required is a reasonable level of proof?

Dominic Grieve (Conservative, Beaconsfield)

The employer would not have the slightest idea whether that money was the money he had paid to the employee.

Tom Harris (Labour, Glasgow Cathcart)

I accept that the hon. Gentleman is outlining his genuine concerns, and I know that Opposition Members do not support such criminals or want to protect them. However, many drug barons-Mr. Bigs-have benefited from the proceeds of crime for 20 or 30 years and have built up a stockpile of wealth. Does the hon. Gentleman want to do something about that accumulated wealth? If he is against the clause, can he suggest an alternative?

Dominic Grieve (Conservative, Beaconsfield)

The hon. Gentleman makes a good point. I hope that he will forgive me for saying that this is exactly the type of dialogue that members of the Committee should have. I accept the Minister's point that the demerit of the amendment might be that it could shift the goalposts too far in the other direction, so that the clause might not allow the seizure of long-standing assets, and someone who had conducted 20 or 30 years of criminal activity would escape.

Is there a further option? The Minister said that there was a provision in subsection (6) that the court need not make assumptions if there were a serious risk of injustice. I shall put myself in a judicial capacity, and say that it will be difficult for a court to seize any assets that can be shown to predate a seven-year acquisition period, because if a person says, ``These were legitimately acquired, but I haven't got the records'', any court will have difficulty unless-to pick up what the hon. Member for Glasgow, Cathcart (Mr. Harris) said-the assets are disproportionate to the person's lifestyle compared with his career history. That is what we are trying to flag up.

The Minister may be ingenious and identify a third way-to use the Labour party's usual mantra-that may help us, but we tabled the amendment to highlight potential difficulty and injustice. That is why I wish that the Minister would engage in constructive dialogue, rather than telling us that we are weakening the powers that can be used against criminals.

Mark Field (Conservative, Cities of London and Westminster)

I have taken on board the suggestions of the hon. Members for Glasgow, Cathcart and for Birmingham, Hall Green. I fully appreciate what my hon. Friend the Member for Beaconsfield said about wanting a structure that will ensure that criminals have their money swept up. Subsection (3) is a sweeping-up provision for use when we know that people have done wrong but we cannot get hold of all the assets. There is suspicion that assets have been salted away, even over the previous six years, so there is a draconian sweeping-up provision. Many libertarians are worried about whether it is right to go down that road. If the Bill is enacted in its current form, such provisions will be regarded as normal practice. There will be a reverse burden of proof, and it will be implied that all individuals should be entirely happy to make clear all their transactions to the state. If people do not do that, there will be immediate reverse suspicion, as it were. Conservative Members-and, I hope, Labour Members-have deep concerns about the law moving in such a direction.

Dominic Grieve (Conservative, Beaconsfield)

I agree with my hon. Friend. We are not examining the confiscation mechanism in isolation because later-I am not sure when-we will consider civil recovery. That is a sensible way for the state to recover a person's ill-gotten gains that stretch back over years. We will want to examine the civil recovery proposals in greater detail, but I find them interesting.

The confiscation provisions are onerous for the defendant, and can be triggered by several events-by a series of offences stretching over a period, or by a single offence. It would be difficult to administer the system fairly when examining assets that the evidence suggested first appeared a long time ago. That is a problem.

Paul Stinchcombe (Labour, Wellingborough)

The hon. Gentleman makes an interesting case, and is trying to persuade the Minister to look for a third way. Why does he think that the way outlined in the Bill is wrong? The evidential burden is placed on the criminal for two good reasons: first, because he is a criminal, and secondly, because if it is hard for the criminal to prove the origin of his goods, it is inevitably harder for the state to do so-after all, it is the criminal who receives, imports, or inherits the goods.

We have a backstop in the discretion vested in the court by subsection (6), which allows courts not to make the assumption if

``(a) the assumption is shown to be incorrect, or

(b) there would be a serious risk of injustice''.

What is wrong with that structure?

Dominic Grieve (Conservative, Beaconsfield)

I accept that there is a welcome safeguard in subsection (6), and I am glad of it. Nevertheless, it is pointless for Parliament to set up a structure that is always in danger of falling into the ``serious risk of injustice'' category because of the way in which it is defined. We are not intended to set up such structures; nor is the Minister.

There are difficulties with a reverse burden of proof. It requires a defendant to prove the legitimate acquisition of assets that were gained before the period in which he is under a legal obligation to keep records about those assets. I am not saying that the amendment provides the solution. Perhaps, as a result of our discussion, we shall think again and return to the subject on Report. I welcome this discussion, and it would be helpful if the Minister were either to persuade me that there is no problem, or to acknowledge that there is, and say that he will think about it.

David Wilshire (Conservative, Spelthorne)

I have heard one or two things that cause me concern. The hon. Member for Wellingborough (Mr. Stinchcombe) argued that once it became impossible for the state to prove something, the state would make the assumption that the defendant was guilty. I should be very worried by such a precedent.

I was also concerned when the Minister said that he thought that we were arguing for an amnesty, as though anyone who argues for an amnesty is wrong. Some of us made that point about convicted criminals in Northern Ireland. Sometimes amnesties seem a good thing to the Minister, and sometimes they seem bad. We should put aside his argument, as it seems to be a subjective judgment and not a matter of fact.

Perhaps the Minister, like my hon. Friend the Member for Beaconsfield, is so locked into consideration of the Bill that events elsewhere in this Palace have escaped his notice, but this is a week for striking a balance, and that is relevant to the amendment. We have heard the Secretary of State for Transport, Local Government and the Regions say that we must strike a balance between the interests of the aviation industry and local people in connection with terminal 5-I see the look on your face, Mr. Gale, so I shall not pursue the subject any further, except to say that it gives us an example of striking a balance from earlier this week.

I listened yesterday to the Home Secretary arguing at some length that a balance had to be struck between protecting British people against terrorism and protecting those who might be guilty of terrorism although the state could not prove it. We have to strike a balance-that look is coming over your face again, Mr. Gale, so I shall not speak further about the anti-terrorism legislation. I shall speak instead about the need to strike a balance in the Bill.

Even someone who has been convicted of criminal activity-they may or may not be a lesser form of life; I do not want to enter that debate-is a human being who is entitled to the same fundamental rights as the rest of us, irrespective of what he has done. If we follow the doctrine that if one offends against society, one loses one's rights, we will build a society in which I would not wish to live, and in which I would not wish to condemn other people to live. We must find a balance. I accept and support the Government's objective of finding a mechanism for capturing the huge amounts of money being made from dealing in drugs, but that must not be pursued to the point at which we trample on individual's rights.

There comes a point at which one can no longer reasonably say, ``You are guilty until you prove yourself innocent. We will assume that you made this money illegally, unless you can show us otherwise.'' Various people have tried to explain that. I, too, have run small businesses over the years, and if the Government wanted to sweep up all the profit that I had ever made, it would not dent the national debt by more than a fraction of a millipenny. Nevertheless, the amount of paperwork generated over those years had to be got rid of. There is no point in anyone saying to me, ``What profit did you make 15 years ago? Where did you acquire the goods from? Who did you sell them to?'' I will no longer have the slightest notion, and the law has never required me to.

I shall suggest some examples that show why there must come such a point-six years seems sensible. My examples are small beer, but they can be scaled up. My father, who died 34 years ago, left me some shares. I probably can no longer tell you exactly what they were-I could have a stab at it, but I cannot say how many there were. Over subsequent years, some of them have made a profit and been sold, and the money has been reinvested. However, I cannot not say how much profit was made. During those years, there have been occasions when I have earned enough in a year to buy shares of my own. I can no longer say exactly which shares those were, either. Some of them have made a profit, and I have taken that profit and reinvested it. I have no doubt-although I cannot prove it, and nobody else can prove it-that there will have been occasions during those 34 years when I have taken some profit from shares that I was given, and some from shares that I have bought, and used the joint money to buy something else.

Steve McCabe (Labour, Birmingham, Hall Green)

A better tie, for example.

David Wilshire (Conservative, Spelthorne)

Yes, I shall sell some shares before next week and try to humour the hon. Gentleman if I can. Even with the Government's confiscatory regime, I may have some assets left, but not for long.

To return to my point, I will now have in my possession, or will have had and sold, some assets that came from my father, and some that I acquired myself. There is no way on this earth that I will be able to say which are which. If one scales that up to the example of drug money, some of which came from here and some from there a long time ago-some of which was innocent and some guilty, some legitimate and some not-I defy somebody to be able to demonstrate, 34 years later, which came from where, and what was acquired how. If that cannot be done, and the Government therefore say, ``We'll take the lot,'' we will have committed an injustice to somebody who has a right to justice.

Ian Lucas (Labour, Wrexham)

Does the hon. Gentleman not accept that if, in the extremely unlikely event of his conviction, he gave a judge the description of the purchase and sale of shares that he has just given, the judge would agree that it was more likely than not-

Bob Ainsworth (Labour, Coventry North East)

On the balance of probabilities.

Ian Lucas (Labour, Wrexham)

-that those shares and that money had been lawfully obtained.

David Wilshire (Conservative, Spelthorne)

If we take my example of one element of criminality-one asset from an innocent source and one from a guilty source-one of those two would have been obtained through criminal activity and the other would not. Therefore, the judge could not say that the whole lot had been obtained through criminal activity, because there would be an admission that part of it was criminal and part of it was innocent. If I understand the Bill correctly, in the absence of a restriction on that blanket power, the court will say, ``Sorry, it is up to you to prove which bit has come from an innocent source, and you cannot do that, so we will assume that the whole lot is from a guilty source''. The court will take everything; that is what worries me. If that is not what the Bill proposes, the amendment-or a similar one-would make sense.

Roger Gale (Conservative, North Thanet)

Order. The Parliamentary Private Secretary is not allowed to wander around the Committee room.

David Wilshire (Conservative, Spelthorne)

Thank you, Mr. Gale.

My mother died a few weeks ago. My father died about 30 years ago, and there is much that I do not know about the intervening period. I am now dealing with my mother's assets, and the property that she acquired. I know where some things came from; I can remember, even though I might not have seen them for 30 years. However, I am also discovering that I have no idea about where other items-such as, interestingly, a couple of pictures-came from. It would be ridiculous to suggest that I could find out where she bought one of those pictures. How many art dealers are there in London, or in the rest of the United Kingdom, or in the world? If I cannot find the paperwork, how do I know where to go? How do I know where any of those things came from? I cannot ask my mother, and her papers are in such a disorganised state that it is not possible to go through them to discover the sources.

Mark Lazarowicz (Labour/Co-operative, Edinburgh North and Leith)

The hon. Gentleman is outlining a complex set of possibilities that might lead to the provisions of the Bill being applied to him. However, he has ignored an overriding criterion: they would apply to him only if he were a convicted criminal. Is he a criminal?

David Wilshire (Conservative, Spelthorne)

I am using a personal family situation as an example. I am not a lawyer, so I need to start with something I understand, such as my complex family arrangements. I will explain shortly how my example highlights some of my concerns about the Bill.

Stephen Hesford (Labour, Wirral West)

The provision is not targeted at the hon. Gentleman's family. It is intended to deal with criminals, and people choose to be criminals. I could reverse the example. In my experience, drug barons know very well where their assets come from. They keep copious records of their drugs and their money. The only problem is that they refuse to tell the prosecution authorities about them. If criminals want their legitimate and their criminal assets to be separated, they can bring their records to court.

David Wilshire (Conservative, Spelthorne)

Some drug barons who are arrested and taken to court might have copious notes about where their assets came from, but I can also imagine that some drug dealers might not. It appears that the doctrine now is not only ``You must prove where you got it from or you are guilty'', but ``We will assume that you do have paperwork, even though you cannot find it and will not produce it. If you did produce it you could provide an answer, but because you do not have it and you will not produce it, we will assume that you are guilty''. If that is the case, a further step is being taken down the track of abusing human rights.

Norman Baker (Liberal Democrat, Lewes)

The provision is not only targeted at drug barons. Laws already exist that are targeted at them. The provision is much broader; it will catch a huge swathe of people. Although a criminal obtains the proceeds of his crimes, that does not mean that all his property has been criminally obtained-but the legislation will deal with him as if it were.

David Wilshire (Conservative, Spelthorne)

I agree.

Before I was diverted, I was talking about people other than drug barons: I was talking about my mother, and I wish to return to that subject. I am sure that if she were listening, she would understand that some grannies are criminals. [Interruption.] I mean nothing personal.

Bob Ainsworth (Labour, Coventry North East)

What does that mean?

George Foulkes (Labour/Co-operative, Carrick, Cumnock and Doon Valley)

Like Baroness Thatcher.

David Wilshire (Conservative, Spelthorne)

We shall ignore that.

Let us take my personal example of what I cannot, after 30 years, understand or explain in the case of one of my relatives. If the person's relationship to me were a formal, legal business partnership, at the moment of that person's death I would stand in the direct line of the entire partnership as far as the law, debts and property were concerned. In such circumstances, I might or might not be a criminal, but six, 10 or 30 years later I would suddenly find myself in the direct firing line for a whole set of transactions and bits and pieces of property, money and other things that I could not explain. I would be at risk of being branded as a party to criminal activity, because a partnership acts jointly.

The Minister shakes his head, but the phrase ``partners in crime'' can have a legal as well as a jargon meaning. Surely a time must come when natural justice suggests that if the benefit of the doubt is involved, we should not continue giving the state the benefit of that doubt for ever. Each of us in the Room could, if we thought about it, understand the problem clearly. I clutch a date from the air. Let us take 17 June this year. There is no reason why that date slips into my mind, but I defy anyone in the Room to write down in detail what they did throughout 17 June, even this year. If anyone wants to accept that challenge, I shall be fascinated.

Ian Lucas (Labour, Wrexham)

Labour Members were celebrating Labour's glorious election victory.

David Wilshire (Conservative, Spelthorne)

That illustrates my point, because the hon. Gentleman's recollection will have been so hazy, following the previous night's celebrations, that unless he is a teetotaller, his chance of remembering anything would be small. It had not even occurred to me that that was the relevance of 17 June; perhaps it is engraved on my mind.

Whatever the Government are trying to do, and however much I want to support them, a time must come when natural justice suggests that enough is enough. I hope that my hon. Friend the Member for Beaconsfield does not mind, but I readily accept that six years may not be the most accurate period to choose. The principle that we are driving at is that a point must come at which we can no longer make an assumption and say, ``We'll have the lot unless you can stop us.'' A point is reached at which the issue is not an amnesty but natural justice. On those grounds, I ask the Minister to reconsider and find out whether a better way of achieving what he wants might be found without trampling all over people.

Nick Hawkins (Conservative, Surrey Heath)

I shall speak again at this stage, because issues that I did not deal with in my initial remarks were raised in interventions on my hon. Friend the Member for Beaconsfield, and it would have taken me too long to deal with them in a further intervention. I have something to say to the Minister, and other Labour Members, because it is important for the Minister to understand. Since 1997, Opposition Members have become familiar with a new authoritarian tendency in Labour Back Benchers and Ministers. It is especially prevalent in connection with provisions such as this.

The attitude seems to relate to any sort of wrongdoer-as my hon. Friend the Member for Spelthorne (Mr. Wilshire) said, we are not talking about drug barons alone. The provision can catch lots of other criminals. We all want to hit the Mr. Bigs and ensure that criminals have their criminal assets seized. We are not trying to undermine that, but even those with a criminal record are entitled to a minimum standard of justice. I hope that if the Minister comments further on the matter before we reach the end of the debate he will finally understand that we are not-

Mr. Foulkes rose-

Nick Hawkins (Conservative, Surrey Heath)

I shall give way to the Minister when I have finished my general point.

Those of us who were in the 1992-97 Parliament, which many members of the Committee were not, and in earlier Parliaments-my hon. Friend the Member for Spelthorne has longer experience than I, Mr. Gale, and so do you-got used to the fact that when we were in government, Labour Back Benchers, then in opposition, constantly attacked us, saying that the Tory party was far too authoritarian and wanted to lock up criminals and throw away the key. Suddenly, now that we have a Labour Government, that attitude seems to have been reversed. With this Home Office legislation, Labour Back Benchers are behaving as if we are in the realm of the trial of Joseph K, and once someone is a criminal anything could happen. The burden will be put on the defendant, even if he has no possible chance of demonstrating that some of his property is legitimate.

Mr. Foulkes rose-

Nick Hawkins (Conservative, Surrey Heath)

Before I give way to the Minister, I shall cite one further example. A person may have turned to crime in later life. He may have spent 10 or 15 years in perfectly legitimate employment and acquired some assets. The employer may have gone bust and the wage slips may have long since gone into oblivion on both the employee's and the employer's side. Twenty or 30 years later, long after that legitimate employment, that person may fall within the remit of the Bill, and the evidential and the legal burden of proof will be on him to establish that the property is legitimate. He may say that he brought the property legitimately, but cannot produce the evidence.

If there were no documentary record of the transactions, how could he establish on the balance of probabilities that the property was legitimate? It is not good enough for Labour Members to say that Mr. Bigs keep records. They may keep records of their drug dealings, but they will not necessarily keep records of what they were doing legitimately 30 years ago, before they took to crime. I appreciate that some people have a lifetime of crime, but not everyone does. The Bill should ensure that the minimum civil rights even of those who have become criminals and fall within its purview are protected. It is extraordinary that so many Labour Members now seem to believe that the minute someone becomes a criminal, he has no rights and everything goes out of the window- [Interruption.] I shall give way to the Minister now.

George Foulkes (Labour/Co-operative, Carrick, Cumnock and Doon Valley)

I almost lost the will to live while the hon. Gentleman was speaking just then. His line seemed to be, ``Suddenly, there was a Labour Government''-but that is not what happened; I suffered under a Tory Government for 18 years. The hon. Members for Spelthorne and for Surrey Heath have both said that convicted criminals do not lose their rights. However, certain convicted criminals lose their right to vote. Some of them even lose their right to sit in the House of Commons-although sadly, criminals do not lose their right to sit in the House of Lords.

Nick Hawkins (Conservative, Surrey Heath)

I realise that the Minister had to make his cheap political crack. I sometimes think better of the hon. Gentleman, and I know that he makes serious points, but that was one of his less serious.

George Foulkes (Labour/Co-operative, Carrick, Cumnock and Doon Valley)

Yes, it was.

Nick Hawkins (Conservative, Surrey Heath)

Despite the levity that is a part of Committee proceedings which we enjoy, I hope that my serious point will cause at least some Labour Members to reconsider. The hon. Member for Glasgow, Cathcart is not in the Room at the moment, but earlier he made one of the few serious interventions, and acknowledged the basis of the argument of my hon. Friend the Member for Beaconsfield. I hope that both Ministers, and particularly those who advise them, do that, too. We are not saying that the amendment is perfect. As my hon. Friend said, it may go too far the other way. I want Ministers to realise that their initial drafting goes too far against even the minimum civil rights. I hope that they will be willing to consider a third way.

Bob Ainsworth (Labour, Coventry North East)

Perhaps we can return to Bill and the effect of the amendment, and get away from the hon. Member for Spelthorne and his mum, and people being required to prove, seemingly beyond all reasonable doubt, that a particular transaction took place 30 years ago. [Interruption.] I will take interventions, but first, in order to move away from the fantasy and fiction that the Opposition have portrayed for the past few minutes, I will tell the Committee what the situation and procedure will be.

First, we are dealing with criminals. They are not a lower form of life and nobody is branding them as such-unless Conservative Members are, because they tend to be more disparaging about other human beings than I do. Criminals would stand in court following conviction. The assumptions deal with a criminal who has committed the offences or pattern of offences mentioned in clause 75, which show a criminal lifestyle-other hon. Members may want to change that phrase. As my hon. Friend the Member for Wirral, West (Stephen Hesford) said, we are not dealing with the general population, but with convicted criminals or criminals with a background of cases that justify the assumptions. We will also have a statement from the prosecutor or the director that details assets held by the criminal, not by his mum.

That is the starting point. With an earlier amendment, hon. Members tried, for reasons best know to themselves, to change the burden of proof. The convicted criminal will have to show the court, on the balance of probabilities, that the assets are not the proceeds of crime, but he will not have to show proof of a particular transaction from 25 years ago. Hon. Members say that we are trying to remove the discretion of the court. We are not doing that, because that is the court's purpose. We are reversing the burden of proof because the man or woman will have been convicted. A further reason for reversing the burden is that the defendant is the only person who knows the origin of the property, even if he cannot prove it.

Mr. Grieve rose-

Bob Ainsworth (Labour, Coventry North East)

Hold on. I shall give way in a moment.

If the criminal can show that, on the balance of probabilities, it would be a serious injustice if was assumed that his property was the proceeds of crime-or show that, again on the balance of probabilities, it is not the proceeds of crime, the property will not be removed. If the hon. Member for Spelthorne had serious legitimate income, he would state that. That would be taken into account against convictions that showed that he had a criminal lifestyle. That is the procedure that will be followed, and it should not be suggested that we are trying to remove the court's discretion or to introduce an unreasonable test.

The Opposition's proposal would put any property that was gained over six years ago beyond reach. That would be an amnesty. The hon. Member for Spelthorne may be hurt about my use of that word because of the line that he has taken on other matters, but that is what the effect of the amendment would be.

Dominic Grieve (Conservative, Beaconsfield)

The Minister's remarks were telling, because he implied that sometimes a criminal would know, but could not prove, where his legitimately acquired assets came from. That was the clear implication of his phraseology. I appreciate the Minister's point, but it therefore seems that sometimes injustice will occur because a person will know that he has a legitimate asset, but will not be able to prove that on the balance of probabilities. In such circumstances, money will be taken away. That is the direct result of reversing the burden of proof.

Bob Ainsworth (Labour, Coventry North East)

The hon. Gentleman knows that a criminal will not have to prove the facts about an asset beyond reasonable doubt. The hon. Member for Spelthorne suggested that proof beyond reasonable doubt would be required for an asset that was purchased with legitimate income 30 years ago, and the paperwork to show that would have to be kept. That is complete nonsense. I know that some hon. Gentlemen are disparaging about my ability to understand the concepts that they put before the Committee, but they know that the suggestion is nonsense. A person will have to show that property currently held is not the proceeds of crime. That is not an unreasonable request if a person has been convicted of a crime or a pattern of offences that suggests a criminal lifestyle. If that were reversed, the legislation would be rendered unworkable, and confiscation of substantial assets, about which the hon. Member for Beaconsfield wishes to rejoice, would not occur.

David Wilshire (Conservative, Spelthorne)

I originally wanted to intervene when the Minister said that only one person-the criminal-``does know'' where his assets come from, and he told my hon. Friend the Member for Beaconsfield that a criminal ``will know'' that. I think that Hansard will show that. I cannot accept what the Minister said. This weekend, I invite him to look at everything in his house and say, ``Do I know exactly where that came from? Do I know exactly who purchased it? Do I know exactly how much it cost?'' If he does not know that, he will understand my point.

Bob Ainsworth (Labour, Coventry North East)

The hon. Gentleman has inserted the word ``exactly'' and made reference to individual items. I know the origin of my income and how I pay for my assets. I know that, and I think that he does, too. A prosecutor would have great difficulty knowing that-he would find it practically impossible to know-as the hon. Gentleman will be aware.

Nick Hawkins (Conservative, Surrey Heath)

May I try to explain to the Minister? In order to make a case, even on the balance of probabilities, no Conservative Member has suggested that the defendant will be asked to prove the matter beyond reasonable doubt.

George Foulkes (Labour/Co-operative, Carrick, Cumnock and Doon Valley)

It was implied.

Nick Hawkins (Conservative, Surrey Heath)

No one implied it.

The court requires evidence, rather than mere assertion, to demonstrate the matter, even on the balance of probabilities. The Minister seems to fail to understand that. It is almost inconceivable that there would be evidence about property from years ago to raise even the balance of probabilities.

Bob Ainsworth (Labour, Coventry North East)

We are discussing an amendment that would effectively put proceeds of crime that were attained prior to six years ago beyond the reach of the prosecuting authorities. I am not prepared to accept that. The amendment would cause serious damage. Appropriate safeguards are present that leave decisions in the hands of the court and, yes, the burden will be on the convicted criminal to show where his assets came from. I am not minded to accept the amendment.

Norman Baker (Liberal Democrat, Lewes)

I listened with care to the Minister's comments about the previous group of amendments and he convinced me that it was appropriate not to insist on them. However, I listened to his comments about this amendment and I am more convinced than ever that he failed to address a serious matter. That is beyond reasonable doubt, or even the balance of probabilities.

The hon. Member for Spelthorne mentioned balance, which is a matter on which the Committee agrees. Every member of the Committee wants to nail criminals and, I hope, is happy with the concept of seizing the proceeds of crime. I also hope that we all have a common cause to avoid injustice, such as innocent people being caught by the Bill and property that is not the proceeds of crime being seized. I hope that we all agree with that general concept. The issue is whether the wording in the Bill achieves those ends.

Hon. Members have referred to the Government's authoritarian tendency, which worries me, although Conservative Governments also had such a tendency-

David Wilshire (Conservative, Spelthorne)

And Liberal Governments.

Norman Baker (Liberal Democrat, Lewes)

The last Liberal Government in 1906 was a radical and forward-looking Administration, which introduced old-age pensions, top-rate tax, trade union rights-

Mark Field (Conservative, Cities of London and Westminster)

Licensing laws.

Norman Baker (Liberal Democrat, Lewes)

Those, too. I am happy to concede that all Governments have a tendency to become more authoritarian. I do not understand why that happens, but it seems to be a natural occurrence. It is certainly happening in connection with this Bill. I hear plenty of voices clamouring to nail the criminal-there is nothing wrong with that-but I have not heard a single Government Member saying that we must ensure that injustice does not happen. I would be grateful to hear that from the Minister or some of his colleagues when they make their points in the round.

I am worried that the Bill may steamroller those people who are in receipt of the proceeds of crime, and stigmatise them in a way that may not be entirely justified. Yes, they are criminals, and they have proceeds of crime that should be seized, but that does not necessarily mean that all their property is the proceeds of crime. It will be difficult for a convicted criminal, who is probably a shady type and has proceeds of crime, to demonstrate that other property that he may have is not the proceeds of crime.

Bob Ainsworth (Labour, Coventry North East)

He will not necessarily have to do that. He will have to present to the court evidence of legitimate income. How on earth can the hon. Gentleman say that we are not interested in whether serious injustice is done when that is exactly what the Bill says it wants to avoid?

Norman Baker (Liberal Democrat, Lewes)

The Minister will recall that I asked why the adjective ``serious'' had to be used, instead of simply referring to a risk of injustice, but I never received an explanation. However, I will let that pass.

I do not know how the Minister organises his financial affairs, but I tend to work on the basis that I keep what may be required by the Inland Revenue. I have therefore kept records going back seven years. I do not know whether that is accurate, but I believe that seven years is the Inland Revenue's requirement. If the Bill becomes law this year, it will contain a provision that goes back a long way into the past, although, because of the current understanding, people will not have kept records for more than seven years. The Bill is therefore retrospective in expecting people to have records that they will not have had to keep until now.

Paul Stinchcombe (Labour, Wellingborough)

The hon. Gentleman prefaced his remarks by saying that he wanted to confiscate property that was the proceeds of crime. Under the amendment, how could such property that was acquired more than six years ago be confiscated?

Norman Baker (Liberal Democrat, Lewes)

I will come on to that, but I would be grateful if Labour Members would explain how they would avoid injustice and ensure that they do not confiscate property that is not the proceeds of crime. The Government need to address that point.

On Second Reading, I referred to the experience in the Republic of Ireland, where the Irish equivalent of the Assets Recovery Agency has great difficulty because of the offloading of the proceeds of crime. The proceeds of crime in Ireland tend to be lap dancing clubs, racehorses and other property of that kind. People are involved in activities such as gambling, and someone who has a criminal lifestyle-or, to suggest an alternative phrase to the Minister, someone who has a history of recurrent criminal behaviour-and who has received proceeds of crime and acted illegally, may also have legitimately placed a bet and won money on a horse. That is not beyond the bounds of possibility-it is sometimes difficult to beat the bookmaker, but it happens occasionally. How can one prove that many years later? It will be almost impossible.

In relation to the balance of probabilities, which is the test under subsection (6)(a) to which the Minister referred, I do not have a problem with reversing the burden of proof when someone has been convicted. However, I do have a problem with asking people to prove something from the mists of time. It becomes more difficult for the state to prove, which is why the onus is put on the criminal. It is unfair for the criminal to have to prove his innocence in respect of property acquired back in the mists of time. Such a provision goes too far.

The point that I and other Opposition Members are making is: where does one draw the line? Someone who has a history of recurrent criminal behaviour may also have legitimate aspects to his behaviour. As the hon. Member for Surrey Heath said, someone may have turned to crime in the recent past-in the past six or seven years-but may have had made legitimate acquisitions before then. The Minister has said nothing to convince me that there is an acceptable method of differentiating.

Let us say, for example, that a criminal has been convicted of an offence, and his assets are to be seized. Some of those assets are clearly the proceeds of crime, but there is also a picture that the criminal claims is a family heirloom, and £15,000 that he says he won on Red Rum. Will the court, on the balance of probabilities-not on a ``plausible explanation'', as the hon. Member for Birmingham, Hall Green said earlier-believe a criminal who has committed offences, has proceeds of crime and is probably a shady character? Will it believe that he could have acquired something legitimately, perhaps by an implausible method like winning a lot of money on a horse? How will he prove that? He cannot. The Minister, who has a legitimate, understandable and laudable desire to nail criminals and seize the proceeds of crime, seems to be saying that, if, in the process, property is swept up that is not the proceeds of crime, that is a price worth paying.

Stephen Hesford (Labour, Wirral West)

Does the hon. Gentleman not appreciate the fallacy in his argument? One is equally unlikely to be able to prove that one won money on a bet, whether it was three or 15 years ago. The time element does not apply in relation to the betting example.

Norman Baker (Liberal Democrat, Lewes)

I do not accept that. I accept that it may be difficult to prove, even when the bet was three years ago, but I am prepared to live with that. A process must be in place that does not let the criminal off the hook too easily.

Stephen Hesford (Labour, Wirral West)

So it is not an issue of principle.

Norman Baker (Liberal Democrat, Lewes)

It is an issue of trying to get the balance right. It is about trying to make sure that criminals do not escape the net, which is what the Bill is designed to do, while, on the other hand, making sure that injustices do not occur. It is a question of where to draw the line. The Minister is drawing the line in the wrong place if people are allowed to go back into the mists of time and say, ``If you can't prove how and where you got this asset 25 years ago, we're having it.'' That is not right. I am a muesli-eating, organic food-eating, Guardian-reading-

Mark Field (Conservative, Cities of London and Westminster)

Sandal-wearing.

Norman Baker (Liberal Democrat, Lewes)

I do not wear sandals.

David Wilshire (Conservative, Spelthorne)

Will the hon. Gentleman take some care? After I spoke so firmly in favour of his amendment, he should consider not trying to switch me off.

Norman Baker (Liberal Democrat, Lewes)

I was trying to switch Labour Members on, who may also be Guardian readers. The Home Secretary singularly failed to accept my challenge as to whether he reads The Guardian. I think that he prefers The Times these days.

George Foulkes (Labour/Co-operative, Carrick, Cumnock and Doon Valley)

What about The Scotsman?

Norman Baker (Liberal Democrat, Lewes)

I am also a Scotsman, so I appeal to the Minister. The line has not been drawn in the right place. There is a risk of injustice. It is all very well to say that subsection (6)(a) and (b) deal with the matter. For the reasons that I have outlined, I do not believe that they do.

What is the alternative and how can we deal with proceeds of crime that were obtained prior to the six-year period? I do not know. I am not a lawyer. I am not a draftsman. It is my job to point out injustices and problems with legislation. It is up to the Government to introduce appropriate measures. A system could be put in place, for example, that would put the onus back on the prosecuting authorities for a period prior to six years. There may be other ways in which to legislate, such as making 10 years the appropriate cut-off point.

Paul Stinchcombe (Labour, Wellingborough)

The hon. Gentleman's suggestion is interesting. At the outset, he accepts that the burden of proof should be on the convict, who is in the best position to prove where his assets came from, but when that becomes even harder to prove, the hon. Gentleman switches the burden back to the prosecutor.

Norman Baker (Liberal Democrat, Lewes)

That is right. If it becomes harder for the criminal to demonstrate that his property may have been obtained legitimately, it is an unfair test. That is why I want the onus put back on the prosecutor.

Nick Hawkins (Conservative, Surrey Heath)

I strongly agree with the way in which the hon. Gentleman is putting his case. Is not part of the answer to the point made by the hon. Member for Wellingborough (Mr. Stinchcombe) that we want to limit any possible injustice and that even criminals should not be subject to unjust draconian laws?

Norman Baker (Liberal Democrat, Lewes)

That is exactly right. In another context, the Government are considering that it would be legitimate for juries to have access to information about previous convictions. In this country, we have tended not to make people aware of previous convictions so that the jury is not prejudiced. However, the courts may be prejudiced against such people, first because they are convicted criminals and secondly because they will have the proceeds of crime.

Dominic Grieve (Conservative, Beaconsfield)

I hope that the hon. Gentleman will forgive me for raising an issue that has not been raised before in Committee. At present, the only burden on the prosecutor is to identify the assets held by the defendant at any time after the conviction. However, under the amendment, extrapolating which assets were transferred and which were not could be a difficult task for the defendant as well as for the prosecutor. Does the hon. Gentleman see any way in which to get round that problem, or should it be thrown back to the Government?

Norman Baker (Liberal Democrat, Lewes)

The onus is always on the Government and their civil servants to draft a Bill that works. It is the role of Opposition parties and Labour Back Benchers to point out to Ministers problems in legislation, so that it works effectively, does not have loopholes and everyone is happy with it. That is how the process should work. Working with the sparse resources of the Liberal Democrats-we are not sure what the Conservatives have-we concluded that a time limit different from six years could be set. There may be a reversal of the requirement for the burden of proof from the criminal to the prosecuting authorities before six years.

There could be other ways in which to deal with the problem-I am open to suggestions-but the current provision is not fair. I do not believe that there are sufficient safeguards to prevent injustice from occurring. That is genuinely how I feel. Nothing that the Minister has said today has convinced me otherwise. For the first time in this Committee, I shall press the amendment to a Division.

Question put, That the amendment be made:-

The Committee divided: Ayes 7, Noes 12.

Nick Hawkins (Conservative, Surrey Heath)

On a point of order, Mr. Gale. My hon. Friend the Member for Beaconsfield and I might have misunderstood something. Is it the case that, if amendments Nos. 51 to 59 were all linked to amendment No. 24, they fell if the hon. Member for Lewes did not move them? My hon. Friend and I were hoping to have a separate vote on amendments Nos. 51 to 59-although a debate on amendment No. 51 would have been sufficient, as the others are consequential.

Roger Gale (Conservative, North Thanet)

The hon. Member for Lewes had an opportunity to endeavour to put amendment No. 51 to a vote, and chose not to do so.

The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause stand part of the Bill.

Question agreed to.

Clause 11 ordered to stand part of the Bill.

Clause 12 - Time for payment

Mark Field (Conservative, Cities of London and Westminster)

I beg to move amendment No. 101, in page 6, line 28, leave out `on' and insert `within seven days of'.

Roger Gale (Conservative, North Thanet)

With this we may discuss amendment No. 102, in Clause 13, page 7, line 3, leave out

`when it is required to be paid'

and insert

`within seven days of the making of the order'

.

Mark Field (Conservative, Cities of London and Westminster)

This is my first opportunity to move an amendment. I trust that Labour Members will be easy on me. [Laughter.] That is wishful thinking, I suppose.

Vera Baird (Labour, Redcar)

And a hostage to fortune.

Mark Field (Conservative, Cities of London and Westminster)

Indeed.

I am disappointed that my adversary from Second Reading, the hon. Member for Glasgow, Pollok (Mr. Davidson), is not present, because it seems to me that he holds to the view that if one has nothing to hide, there is no reason why one should object to the Assets Recovery Agency, or any police authority, bugging one's phone-or, rather, my phone-or searching my house at will, or inspecting my bank account without my consent. Concerns about such matters have been expressed. The Committee has had a great debate on clause 11, which is one of the key clauses. Clause 12 follows on from it by addressing the matter of the time of payment.

One of my fundamental concerns is about the balance between the individual and the state. As I have said, concern is felt in many of our inner cities about the large number of criminals who are able to get away with murder-so to speak-by having extensive assets that seem to be beyond the grasp of the state.

As the Minister pointed out, it was a Conservative Government of the 1980s that first introduced more draconian powers through the Drug Trafficking Offences Act 1986, which was repealed by the Drug Trafficking Act 1994. However, there is an issue about the balance between the power of the state and the power of the individual. My overriding concern is that so many new powers are being introduced that soon the balance will be shifted in favour of the state-and that will be the case not only for criminals but for every individual. That is why we have gone into what might be described as tortuous detail to try to tease out from the Government how they feel such matters will pan out.

I appreciate the frustrations that are felt concerning this matter. I am sure that the Minister looks at what is going on and is greatly concerned that large sums of drug money are not being confiscated, and that many Mr. Bigs are able to hire expensive lawyers and to invest much of their money overseas. There is a desire to try to get hold of that cash, particularly since the outrage of 11 September. He will recall that, when I spoke about that matter on Second Reading, I mentioned that the terrorists often have legitimate money. Certainly, much of Osama bin Laden's money had a legitimate origin and would not fall within the scope of much that we are discussing.

I want to touch on the practicalities involved in the issue of time for payment. We are all aware that the defendant in such a case will have already been subject to a full financial investigation. I propose these small changes for practical purposes. Obviously a fundamental assessment will be made of a person's financial affairs when they are under investigation and at some point close to conviction. The amendment struck me as a practical proposition. I wanted to leave that flexibility, which will make sense for the practical application of the time frame, not so much to give seven days' grace-that is not the idea-but merely to allow the authorities to ensure that the matter proceeds as smoothly as possible.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I was interested to see the amendment on the amendment paper, but I am more interested to hear that the basis on which it is offered is one of practicality. From a practical point of view, although I accept that the hon. Gentleman tabled it in a spirit of helpfulness, the amendment might cause confusion, because subsections (2) onwards provide for payment to be made within a certain amount of time. The practical position is that at present a monetary penalty such as a fine paid in court is always payable at the time that it is imposed, but as a matter of practice the court will allow time for payment where the need is shown.

Mark Field (Conservative, Cities of London and Westminster)

I take on board the hon. Gentleman's comments, but it is important to get the Bill right, and my strong feeling was that-

Mark Lazarowicz (Labour/Co-operative, Edinburgh North and Leith)

I endorse the comments of the hon. Member for Orkney and Shetland (Mr. Carmichael) and suggest to the hon. Member for Cities of London and Westminster (Mr. Field) that another problem is involved. In many circumstances in which such an order is likely to be made, the defendant may have taken the precaution of trying to dispose of or hide assets prior to its being made. Does the hon. Member for Cities of London and Westminster accept that the defendant may not have taken such precautions? Does he not believe that giving a convicted person seven days' grace is an invitation to that person to hide as much of the money as he can in that period?

Mark Field (Conservative, Cities of London and Westminster)

I fully understand how the hon. Gentleman might on first reading have come to that conclusion. The practical reality is that a person who is subject to a lengthy criminal trial will have been subject to a sophisticated analysis of assets, and the idea that within those seven days-which I regard as good housekeeping as much as anything else-he would be able salt away assets is unrealistic. I notice that my honourable adversary the Member for Glasgow, Pollok, about whom I spoke in vain, is now present. He will have to read in the report what I said earlier.

Mark Lazarowicz (Labour/Co-operative, Edinburgh North and Leith)

I accept that the hon. Gentleman's argument about assets having been salted away at an earlier stage may apply in circumstances such as those involving money laundering, in which I understand that he has a particular interest. The case of the cash economy of a drug dealer is an example that has been much discussed in Committee. Is not that precisely a case in which assets might be held as large amounts of cash that could easily be dissipated in seven days, if that period of grace was allowed? As the hon. Member for Orkney and Shetland points out, if such a case comes to court, the time for payment can be extended not just for seven days but for up to six months. Is not that much fairer than the loophole for drug dealers that I fear is contained in the amendment?

Mark Field (Conservative, Cities of London and Westminster)

I beg to differ. We have discussed the point. I do not think that the amendment creates a loophole that creates a risk that money may go far afield. It has been pointed out that there are certain safeguards, but they are the discretionary safeguards of the courts. I wanted to tidy up the measure, and had hoped that the amendment would be no more than a practicality that points out how the clause would work in reality.

Steve McCabe (Labour, Birmingham, Hall Green)

I have a simple point to make. I recall that the hon. Gentleman and the hon. Member for Surrey Heath earlier made the strong point that they wanted to put the defendant out of his or her misery, and did not want a delay between sentencing and the issue of the confiscation order. Now the former is pleading to give the defendant a longer period of misery. Is not he concerned that he should resume his earlier argument about tidying up matters as quickly as possible?

Mark Field (Conservative, Cities of London and Westminster)

I respectfully suggest that the hon. Gentleman has missed the point of what we want to achieve. A handful of days will not make much difference in the way of misery.

I have made my initial comments on the matter and should like to hear the Minister's response.

Dominic Grieve (Conservative, Beaconsfield)

My hon. Friend has done the Committee a favour by moving the amendment, which raises an interesting issue-one that is by no means favourable to the defendant. I was struck by the interventions of the hon. Members for Edinburgh, North and Leith (Mr. Lazarowicz) and for Orkney and Shetland, who raised the issue of the normal practice by which fines are levied. They are quite right. Normally, the fine is payable immediately. Those of us who have practised in magistrates courts recollect times when the magistrate inquired of a police officer how much money a defendant had in his pockets, and made the assessment then and there. The money was handed over, and that was the end of the matter. I think that that is effectively the original method-certainly, when a fine is levied, it is assumed that the defendant has the assets to pay it.

In contrast, it is implied that the Bill will frequently be used in complex asset cases. After all, assets must first be realised, unless they are in cash. Assets could take the form of shareholdings or chattels-there is a wide range of assets that the courts would want to confiscate, and could make orders to confiscate. One must assume that if there is a danger that someone will dispose of their assets, those assets shall be subject to restraint before the order is made. I do not think that the ``salting away'' argument is valid, because the seven-day theory will not make a difference to that.

George Foulkes (Labour/Co-operative, Carrick, Cumnock and Doon Valley)

The hon. Gentleman is right about salting away. He mentions that the assets may be of a complicated nature. Surely subsection (2) addresses that.

Dominic Grieve (Conservative, Beaconsfield)

The Minister is right. Subsection (2) provides what I would call the normal mechanism for the payment of fines. The merit of the amendment is that in reality there will be no instance in which immediate payment of such sums will ever be made. In reality, defendants will always need time to pay. The oddity is that, by stipulating seven days or 28 days, we would probably be putting more pressure on the defendant than if such action had to be taken immediately. We would at least be defining the rapidity with which Parliament has deemed that payment should be made.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

While associating myself with the remarks of my hon. Friend the Minister of State, may I bring it to the hon. Gentleman's attention that such action will be coming at the end of a complex inquisitory procedure? Surely the courts should have a substantial amount of information at their disposal by the time we proceed under subsection (2).

Dominic Grieve (Conservative, Beaconsfield)

I agree with the hon. Gentleman, which is why I shall not labour my remarks. The point is narrow. Nevertheless, it is interesting. Measures under subsection (1) will be unrealistic in practice. I can envisage some instances when payment in seven days is possible, but I do not envisage circumstances in which someone will hand over the cash then and there. If Parliament is trying to realistic and logical, there is merit in the amendment.

We could look at the matter in a different way and make the period 28 days to ensure that the proceedings are not too spun out and to provide a benchmark against which the payment proceedings should be operated. I am sure that the Minister will agree that the problem of not providing a definition means that the opportunity to expand the periods in which to make the payment may be easier-curiously enough-than if a reasonable time limit had been set. That is a narrow point, but it is perfectly reasonable and I am grateful to my hon. Friend the Member for Cities of London and Westminster for bringing it to our attention.

George Foulkes (Labour/Co-operative, Carrick, Cumnock and Doon Valley)

Despite the disarming introduction to the amendment by the hon. Member for Cities of London and Westminster, on which I congratulate him, I must resist it. The amendment would stop the court ordering the payment of a confiscation order within less than seven days, and amendment No. 102 would require the defendant to pay interest on every confiscation order that has not been paid within seven days of the making of the order, even if the court had allowed longer than seven days to pay it. That may not be what the hon. Gentleman had intended.

The court has always had the power to order the payment of a confiscation order immediately, because Crown court fine enforcement procedures allow it. As the hon. Member for Orkney and Shetland said, payment is deemed to be required forthwith, unless time to pay is allowed. The amendment, like other Opposition amendments before it, would row back even from the existing legislation concerning immediate payment.

I shall explain why the Government oppose the amendments. Clause 12 aims to tighten up the current time-to-pay regime. We do not want any time to pay allowed unless the defendant specifically applies for it and justifies it. The power to order immediate payment of a confiscation order is clearly justified. We start from the premise that a confiscation order is made by the court only if the defendant has sufficient funds available in cash or property to pay it. By definition, a defendant must have the assets to pay a confiscation order, as the amount of the order cannot exceed the available amount that has been calculated by the court.

There may be cases when a confiscation order will be for a small sum and the defendant may have on his or her person in court sufficient funds to pay it there and then, whether by cash or cheque. I put it to the hon. Gentleman that, under such circumstances, it would not be appropriate to allow any time to pay.

The hon. Member for Beaconsfield referred to circumstances in which the defendant needs time to realise property or to arrange for investments to be cashed so that he can pay the confiscation order. The clause will allow that, subject to a cut-off point of a maximum period of 12 months.

I am concerned about the effect that amendment No. 102 would have. It cannot be right that a defendant should have to pay interest from seven days after the confiscation order was made when the court had agreed that he should have longer. Is that really what the Opposition intended?

Dominic Grieve (Conservative, Beaconsfield)

The Minister said earlier that the Opposition were, as usual, trying to row back from the force of the legislation. In the light of his most recent comments, that was clearly uncalled for, so I hope that he will withdraw the remark.

George Foulkes (Labour/Co-operative, Carrick, Cumnock and Doon Valley)

I will certainly do so in the case of amendment No. 102, but I will persist in advocating that my remark applies to amendment No. 101.

Mark Lazarowicz (Labour/Co-operative, Edinburgh North and Leith)

Perhaps the hon. Member for Cities of London and Westminster has made a valid point and highlighted a possible defect. A court may allow a period of time for payment to be made, but during that time the criminal could presumably continue to earn interest on the sums that he possessed during those six months. In those circumstances, it would be quite fair for interest to be charged on the sum that the defendant was due to pay. Perhaps the Minister will consider whether the amendment has some merit.

George Foulkes (Labour/Co-operative, Carrick, Cumnock and Doon Valley)

That is an interesting argument. It seems to have the support of my hon. Friend the Member for Glasgow, Pollok, so I wonder whether I should ignore it.

I want to deal with two points raised by the hon. Member for Beaconsfield. Incidentally, I understand that he had a fantastic slogan when he was elected: ``Grieve for Beaconsfield''.

Dominic Grieve (Conservative, Beaconsfield)

We talked about earlier generations, and it was a member of an earlier generation of my family who had the slogan, ``Grieve for Lincoln''. I have never had the slogan, ``Grieve for Beaconsfield'', even though my e-mail address at the House of Commons-it is appropriate for an Opposition Member of Parliament-is grieved@parliament.uk.

Roger Gale (Conservative, North Thanet)

Order. That was a fascinating intervention, but I do not propose to give the Committee seven minutes to think about it, never mind seven days.

George Foulkes (Labour/Co-operative, Carrick, Cumnock and Doon Valley)

I was going to reply to the hon. Gentleman's intervention, but I shall not.

The hon. Gentleman raised several interesting points about the complex issues. The thrust of the Government's approach is that confiscation should be much more commonly applied, as I hope he understands. Also, the defendant will know from the trial that a confiscation order is likely to be made. In spite of his eloquent and disarming introduction, I must ask the hon. Member for Cities of London and Westminster not to insist on the amendments, and especially amendment No. 102.

Mark Field (Conservative, Cities of London and Westminster)

I hope that you will be happy, Mr. Gale, if I briefly foray into the subject of surnames and slogans. With a name such as Field, it is entirely appropriate that I should be in the Conservative party's least rural seat in the country. I am sure that we could all make such observations.

I thank the Minister for his explanation and kind words. I was amazed at the soft heart that he suddenly showed towards the criminal fraternity. The Committee has made strange bedfellows of us, as I agree with the hon. Member for Glasgow, Pollok on what I accept is a narrow point. We will withdraw the amendment, but it strikes us that the subject of interest might be considered further, especially if the time for payment is protracted. The hon. Member for Edinburgh, North and Leith made a good point. An enormous sum of money might literally earn thousands of pounds of interest each week.

Dominic Grieve (Conservative, Beaconsfield)

After all, interest accrues immediately on a civil judgment debt imposed on the day of the hearing.

Mark Field (Conservative, Cities of London and Westminster)

I was in the throes of ending my remarks when my hon. Friend intervened. I thank the Minister and beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I beg to move amendment No. 61, in page 6, line 41, leave out from `made' to end of line 42.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to take Government amendments Nos. 36 and 37.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

In addition to my normal dose of sweet reason and good nature, I bring a particularly unpleasant north isles bug to the Committee today, which I shall do my best not to share. If I do not run out of arguments, I fear that I shall run out of voice.

The genesis of the amendment is in a briefing received from a body styling itself the Law Society. As a member of the Law Society of Scotland, I have always found the Law Society's use of the definite article just a tad presumptuous. Let us say that the briefing is from a Law Society. I am being candid in this way because the explanation that was offered to me, which persuaded me to table the amendment, involves a scenario with which I have never been acquainted. However, my experience is north of the border and we are dealing with provisions that are largely applicable in England and Wales.

Will the Minister consider the fact that, currently, persons subject to confiscation orders can be made to pay at the rate of £2 to £5 a week. If they have no means with which to pay, a mandatory time limit might lead to their serving a default prison sentence, with the order still to pay. That leaves the unfortunate position that the state incurs the expense of a sentence being served and the proceeds of crime are not recovered.

This might be worthy of consideration because the basis on which the confiscation of the proceeds of crime is allowed to proceed is now so wide. It is possible that we shall be dealing with a lower range of offences than is currently the case, and people of much more restricted means might become the subject of confiscation orders.

The final consideration is, as has been made clear by the hon. Member for Beaconsfield on a number of occasions, that the amount of assets identified in a confiscation order is often greater than the recoverable amount. It is often the case that the money by which a confiscation order is to be satisfied is money acquired at a date later than that of the order. As a Presbyterian, I am always keen to promote the cause of the genuine penitent. If somebody intends to make every effort to fulfil obligations under a confiscation order by using new resources, every opportunity should be allowed for that, and as much time given as might be considered reasonable.

George Foulkes (Labour/Co-operative, Carrick, Cumnock and Doon Valley)

I sympathise with the hon. Gentleman and his northern bug. I have a southern one.

The amendment would allow the court, in exceptional circumstances, to grant the defendant an unlimited period in which to pay the confiscation order. The Government's position is that clause 12 sets out to tackle one of the main problems with the current system for enforcing confiscation orders. Confiscation orders are basically enforced like Crown court fines. One of the consequences of that regime is that the Crown court, when it makes a confiscation order, has the power to allow payment by instalments and time to pay.

We have removed payment by instalments because by definition the individual must have assets with which to pay the order, as we said earlier with reference to the available amount. There is also some evidence of unacceptable use of the present powers. We are informed that the present typical period seems to be between two and three years. To improve matters, we are abolishing payment by instalments and placing a finite limit on the court's power to allow time to pay. The Bill expects offenders to pay their confiscation orders straight away, as provided for. The amount of a confiscation order is based on the value of the property available for enforcement when the order is made, not on an assessment of future earnings, which is important which and deals with one of the points raised by the hon. Member for Orkney and Shetland.

Dominic Grieve (Conservative, Beaconsfield)

I understand exactly what the Minister is trying to achieve and I am sympathetic to it. However, has any assessment been made, by means of inquiring of the judiciary, of why the old system tended to allow such huge periods for payment, particularly in the light of what the hon. Member for Orkney and Shetland has said about the historical problem of overestimating the assets? Are those two matters linked and are we confident that the new mechanism will not have similar problems?

George Foulkes (Labour/Co-operative, Carrick, Cumnock and Doon Valley)

I will deal with the hon. Gentleman's first point later. On his second point, the Bill's definition of ``available amount'', which includes many qualifications and conditions, will prevent overestimation. I cannot answer the point on consultation with the judiciary immediately, but I understand why the hon. Gentleman asked the question and I will endeavour to give him an answer or to have my hon. friend the Under-Secretary give him an answer later.

Let me respond to the hon. Member for Orkney and Shetland. The chance of default imprisonment is low. The defendant must have the assets to pay the order, as I said. If he does not, he can ask the court to revisit the available amount under clause 24. The hon. Gentleman will find that safeguard in clause 24, which ensures that the defendant is able to say, ``Please revisit this, because I don't have the available assets.''

I am now able to advise the hon. Member for Beaconsfield that we have taken advice from the prosecuting authorities and have received information from the inter-departmental working group in relation to the matter. I hope that that will satisfy him to some extent. In no circumstances, not even exceptional ones, should the period be extended beyond 12 months. No defendant should take more than a year to dispose of their assets in order to satisfy a confiscation order. If, for example, they wish to sell a house, they have the opportunity to do that at the most propitious time during the course of an annual cycle.

I hope that my remarks make it clear why we have some difficulty with the amendment. Far from speeding up enforcement, it would preserve the open-ended payment regime that is one of the system's weak points. I hope that in light of my remarks the hon. Member for Orkney and Shetland will see fit to withdraw the amendment.

I would like to deal with Government amendments Nos. 36 and 37 together. Amendment No. 37 is dependent on the acceptance of amendment No. 36. They are technical amendments that relate to applications for more time to pay and payment of interest. As we can see from subsection (1), confiscation orders must normally be paid immediately on the making of a confiscation order. However, under the circumstances described in subsection (2), the court may grant a period of six months for paying the confiscation order; and, in exceptional circumstances, that period may be extended upon application by the defendant to a maximum of 12 months from the date on which the confiscation order was made.

However, the clause does not make it clear what happens when a defendant applies for more time to pay before the expiry of the previous time limit but the court does not have time to deal with the application before the time to pay expires. The amendment makes it clear that the court may continue to deal with the application after the previous period of time to pay has expired. The amendment removes doubt about the procedures involved in handling applications for further time to pay. I hope that that will assist the courts.

Amendment No. 37 is consequential on amendment No. 36. Under clause 13, if the defendant fails to pay the confiscation order in full before the time to pay expires, the order automatically accrues interest at a fixed rate, which is currently 8 per cent. The amendment provides that when a defendant applies for an extension of time to pay before a previous period expires, no interest shall accrue on the order as long as the application is outstanding, or if it is less than 12 months since the order was made, after which time no extension can be given in any case.

Amendment No. 37 will ensure that defendants are not unfairly subjected to the payment of interest. I hope that the hon. Member for Beaconsfield will find it attractive. In light of my previous explanation, I urge the hon. Member for Orkney and Shetland to consider withdrawing his amendment.

David Wilshire (Conservative, Spelthorne)

On a point of order, Mr. Gale. I am sorry that I was not here earlier, but the Minister has just referred to clauses 12 and 13. Will it be possible to debate clause 13 separately, even after we have disposed of the Government amendments? Some issues overlap, and I would like to know whether we need to deal with them both now.

Roger Gale (Conservative, North Thanet)

The amendments are being taken together, but the clauses are not. In due course, we shall move to a Division or accept the amendments before the Committee. One of those amendments relates to clause 13. When we come to the stand part debate on clause 13, hon. Members will have an opportunity to discuss further matters arising.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I have briefly considered the terms of clause 24. It is a generally commendable provision, and I look forward to debating it in due course. My only observation is that subsection 24(2) appears to require application of the provisions of clause 10, but that there is no provision for reopening matters otherwise. If one gets it wrong the first time, I do not see what is to stop one getting it wrong again. That is something to be considered when we visit clause 24. I have pleaded the cause but, as a genuine penitent, I am persuaded that it is not appropriate to pursue the matter. I beg to ask leave to withdraw the amendment.

Mr. Grieve rose-

Roger Gale (Conservative, North Thanet)

Order.

David Wilshire (Conservative, Spelthorne)

On a point of order, Mr. Gale. I am conscious that my hon. Friend the Member for Beaconsfield wished to catch your eye, and was in the process of rising to his feet when I interrupted him. For the record, I saw him stand. However, I shall accept whatever ruling you give on the matter.

Roger Gale (Conservative, North Thanet)

It is up to hon. Members to catch the eye of the Chair. As I said in an earlier ruling, if the mover of the amendment has been called to wind up and if he seeks to withdraw the amendment, that is the end of the debate. However, the hon. Gentleman has been a Member of the House long enough to be aware that he has the opportunity in certain circumstances to raise matters arising during the stand part debate.

Amendment, by leave, withdrawn.

Amendment made: No. 36, in page 6, line 42, at end add-

`(6) An order under subsection (4)-

(a) may be made after the end of the specified period, but

(b) must not be made after the end of the period of 12 months starting with the day on which the confiscation order is made.'-[Mr. Foulkes.]

Question proposed, That the clause stand part of the Bill.

Dominic Grieve (Conservative, Beaconsfield)

I apologise for having to avail myself of this opportunity to speak. Although I stood up vigorously before my hon. Friend the Member for Spelthorne made his point of order, I was perhaps a bit slower when he sat down.

I turn to the amendment that the Minister has just made. I fully understand its purpose, do not want to quibble with it and would not have wanted to vote against it. However, some clarification would be helpful. Clearly, the intention behind proposed new subsection (6) is that if someone fails to go back to the court within the 12-month period to tell the court that he does not have the assets originally sought, it is that person's tough luck. If an individual is properly advised, his adviser will tell him, once eleven and a half months have passed, ``We haven't succeeded in realising the assets that we thought we had. We have sold some assets, but they have brought in less than we expected and, given that 12 months have almost passed, you should go straight back to court to make an application for the variation.'' I assume that the words ``make the application'' imply not having the application heard but the physical process of making it. That was my assumption when the Minister explained the provision.

What would happen in the case of someone who leads a chaotic lifestyle-we have heard about that-who fails to do what is required within the 12-month period, when it is glaringly obvious that a mistake has been made over the assets? Does that person simply go to prison in default? I ask that question because we need to consider the point. That may be what the Minister intends, and one could of course say that people in such cases are simply being irresponsible. However, most of us who practise at the Bar know of numerous examples of people who failed to make applications within the period when they should have been made. It does not necessarily mean that their application was bogus or unwarranted.

David Wilshire (Conservative, Spelthorne)

I approach the matter as a layman. Having listened to the Minister's explanation of why we needed proposed new subsection (6), I thought carefully about what I had been asked to agree to, which the Committee has now approved. The clause seems to say that something must be done immediately, then suggests that it may not have to be done immediately but in a ``specified period'', then goes on to say not simply ``specified period'' but ``six months''. Now that we have accepted the amendment, the clause seems to say that whatever must be done must be done within ``12 months''. As a layman, I am puzzled by the fact that a single clause in a 400-clause Bill can make four differing statements about the same thing.

I have heard hon. Members talk about the valuable skill some people possess of ensuring that a lawyer or a court cannot pin them down. A lot of the debate has related to that point. If people can find only a technicality, a curiosity or confusion in the law, they may discover a possible loophole. They will then spend a great deal of time and-to the lawyers' benefit-a great deal of money in seeking to nullify what the law was designed to achieve. By drafting a clause such as this, we seem to be moving into that territory. Giving the person to whom the law applies those four choices-immediately, specified, six months or 12 months-is a recipe that will allow that person to wriggle and squirm. I hope that the Minister will assure us that there will be no repetition of the problem and that, between now and future sittings, someone will go through the Bill and ensure that it specifies one term or another rather than if, but, when or how.

We all agree that we are trying to take the proceeds of crime away from people who deserve it. Therefore, we should make common cause to prevent clauses such as this from cropping up, as they give people four choices-in my view, four opportunities to get out from under-when one clear statement would be adequate.

George Foulkes (Labour/Co-operative, Carrick, Cumnock and Doon Valley)

The debate has been interesting. Some of the comments that we made earlier about Opposition Members being soft must have struck home, because they no longer appear to be the criminal's friends. Instead, they seem to have taken our advice.

Incidentally, I should say that if the debate continues in the afternoon, my hon. Friend the Under-Secretary will answer it as I have to be elsewhere. I would like to deal with it now.

The hon. Member for Beaconsfield will understand the need for the provision. If the money is available and the sum is not too large-we know that the sum required to be paid under the order will be no greater than the available sum-the person could and should pay it immediately by cheque or cash. Under certain circumstances, property may have to be sold and assets may have to be realised. The hon. Member for Spelthorne told us about all his shares. In the extremely unlikely event that he were a criminal, or if a criminal had a similar amount of shares, those shares would have to be sold and realised. It is appropriate to specify a period no greater than six months.

David Wilshire (Conservative, Spelthorne)

When the Minister referred to me having to sell shares, he triggered a thought in my mind about when the court considered shares as the asset to be sold in the specified period. If someone said that the shares of company X were not doing well, but that they were expected to increase in value during the specified period or at a time to which the period ought therefore to be extended, would the court be entitled-would the Government encourage it-to make an order so that the shares could rise in value and more money would be made? Is that what the Minister has in mind?

George Foulkes (Labour/Co-operative, Carrick, Cumnock and Doon Valley)

No.

As I said earlier to the hon. Member for Orkney and Shetland, it would be possible under clause 24 for the order to be revisited, so various points could be made at another time. For the hon. Member for Beaconsfield, I add the fact that the available sum could be revisited after 12 months under clause 24, but interest would start to accrue.

The provisions are not designed to be soft on criminals. They are meant not to make life easier for criminals, but to make it easier for the court to take money from criminals. They will ensure that money and assets-property, shares and anything else-can be obtained, realised and liquidated so that the cash can be paid to the court.

Dominic Grieve (Conservative, Beaconsfield)

The Minister makes a good point. I accept that clause 24 allows the possibility of going back to court to reapply for a variation of the order when the available sum is inadequate. The sum could therefore be re-calculated. Under the provision that we have recently incorporated in the Bill, interest would accrue on the sum originally ordered, but that may be found to be wrong. Is the Minister saying that, in those circumstances, the person would have to pay interest on a sum that it is subsequently accepted that he should never have had to pay?

George Foulkes (Labour/Co-operative, Carrick, Cumnock and Doon Valley)

I wonder whether the hon. Gentleman could clarify that point because I did not quite understand it.

Dominic Grieve (Conservative, Beaconsfield)

I hope that I am correct to suggest-and I think that the Minister suggested-that there are mechanisms for reconsidering the benefit where an individual is ordered to pay an amount. The new figure-whether higher or lower-can then be imposed. However, those who want more time to pay under the system that, for very valid reasons, is incorporated in the clause must return to court within the specified period or within a maximum of 12 months. If they do not, interest will accrue. However, if it is found on reconsideration that they should pay less, will they have to pay interest on the initial sum, which was eventually found not to be due? I hope that I have made myself clear.

George Foulkes (Labour/Co-operative, Carrick, Cumnock and Doon Valley)

Yes, the hon. Gentleman has made himself clear. He is an able lawyer and explained the point very well.

Clause 24 refers to substituting for the available amount such amount as is just-the crucial word is ``just''. The court could take excessive interest into account.

David Wilshire (Conservative, Spelthorne)

I want to be certain that I heard the Minister correctly. I think that I heard him suggest that certain actions might be taken notwithstanding the provisions of the clause as they relate to the immediately specified period of six months or to the 12-month period and that there could be some other period under clause 24. Reference was also made to interest, but clause 12 has nothing to do with interest. Is the position the same as that for clause 7? That clause clearly stated something, but a subsequent provision said that it did not matter and that the position could be different. In this case, the period is either immediately specified as six months or it is 12 months, but did I hear the Minister say, ``Clause 24 says that it can be longer, providing that interest is paid.''? Is that not sloppy draftsmanship?

George Foulkes (Labour/Co-operative, Carrick, Cumnock and Doon Valley)

No, it is not sloppy draftsmanship. The hon. Gentleman can take up the question about interest under clause 13.

I think that all the issues have been tackled.

Question put and agreed to.

Clause 12, as amended, ordered to stand part of the Bill.

Clause 13 - Interest on unpaid sums

David Wilshire (Conservative, Spelthorne)

We referred fairly regularly to some of the issues raised by clause 13 when we discussed clause 12, and I am concerned about one of them. The Minister said that interest would be paid at a fixed rate of 8 per cent. That might not be a relevant or accurate figure at the moment. However, if the rate is to be fixed irrespective of the economic circumstances, there will be a bit of rigidity in the Bill, which it should not have. Did the Minister mean that the rate would be fixed or that it would be fixed at 8 per cent. for the moment? I sincerely hope that the rate will reflect that payable elsewhere. If not, there will be a potential loophole because it might be cheaper for someone with large sums to borrow money in that way rather than another. I sincerely hope that the Minister will correct me and say that the rate will be fixed for the moment. Otherwise, I hope that he will say that it will be variable and that he will explain how it will be calculated and how it would alter.

George Foulkes (Labour/Co-operative, Carrick, Cumnock and Doon Valley)

The record will show that I said that it is currently 8 per cent.

David Wilshire (Conservative, Spelthorne)

We shall see what the record says. I wrote down what I thought I heard-

It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Two o'clock. {**vert_rule**}

Standing Committee B

Clause 13 - Interest on unpaid sums

David Wilshire (Conservative, Spelthorne)

I seem to recall that I was halfway through a sentence in which I was trying to establish a fact from the Minister of State, Scotland Office, who has perhaps returned to his native land—

Mark Field (Conservative, Cities of London and Westminster)

Not soon enough.

David Wilshire (Conservative, Spelthorne)

We will gloss over that. The Minister apologised for not being present this afternoon.

I believed that I heard the Minister say that a fixed rate of interest would be paid, and I said that that was probably not what he meant. Comment was made from a sedentary position that that was not what was said and I have no doubt that when the Under-Secretary replies, the exact rate of interest to be paid will be clarified. I will not repeat my argument, and I made these comments only so that you would know where we left off, Mr. O'Brien.

A further point worries me about the payment of interest on unpaid sums. There are opportunities for delay. Before we discussed this clause, we debated whether matters should occur immediately, in a specified period, after six months, or after 12 months. The Minister said that the time could be even longer than that and, if that were the case, interest would be chargeable. There are occasions when my hon. Friends and I are accused of being soft on criminals. There are also occasions when Labour Members have amazed looks when we appear to be harder than them. That shows how reasonable, flexible, thinking and responsive my hon. Friends and I are, unlike Labour Members who have one record that is played repetitively.

At the risk of sounding harder than the Minister, I am puzzled why interest is not instantly payable. A debt is a debt, and if interest is chargeable on a debt, it should be chargeable from the moment that the debt arises. I appreciate that there is a question about what happens if there is a later collapse. However, it is possible to repay the interest with interest so that we see that justice is done. A specified period of six months, 12 months or 24 months before the interest kicks in means that large sums could be involved. We should consider closing the potential loophole of playing a delaying game to avoid paying interest until later.

Why have we not had an explanation about the interest, which can and should be paid straight away, and about what the rate of interest should be? We have considered how matters should progress if a court deems fit and whether there should be a right of appeal against the imposition, or even the rate, of interest. I am curious to hear the Minister's response.

Nick Hawkins (Conservative, Surrey Heath)

I agree with every word that my hon. Friend said. Conservative spokesmen associate themselves with his comments.

Bob Ainsworth (Labour, Coventry North East)

If the hon. Member for Spelthorne (Mr. Wilshire) reads the clause, he will see that the matter is clear. Interest is payable from the time when the order becomes payable. If the defendant has asked for time to pay and that is being considered, interest is not payable for that period. There is no doubt about that. The clause states:

``If the amount required to be paid by a person under a confiscation order is not paid when it is required to be paid, he must pay interest on the amount for the period for which it remains unpaid.''

I turn to who sets the level of interest and whether it is appealable. The level of interest is that which applies to other cases under the Judgments Act 1838. It can be varied by order from the Lord Chancellor's Department. It is currently 8 per cent. The level of interest that will apply will not be appealable because it is set in statute and applies to other issues.

David Wilshire (Conservative, Spelthorne)

I understand what the Minister said and I accept that the clause refers to

``when it is required to be paid'',

but we do not know when that is. We were told originally that the order is payable the moment that it is made. We were then told that, if a specified period of, say, 12 months was agreed, it would not be payable, and that it would even be possible to extend the period to 24 months. However, at that point, the Minister of State said that interest would be payable. It is far from clear when interest is payable. Why cannot it be stated clearly that from the moment the order is made, interest is payable, and if there is found to have been a mistake, the money is repaid and interest is paid on the repayment?

Bob Ainsworth (Labour, Coventry North East)

We have such a provision. It is clause 13, under which interest is payable from the time that the order is required to be made. New subsection (2A) states:

``For the purposes of this section no amount is required to be paid under a confiscation order if—

(a) an application has been made under section 12(4),

(b) the application has not been determined by the court, and

(c) the period of 12 months starting with the date on which the confiscation order was made has not ended.''

The clause dictates what happens when those issues have been dealt with and when the order is required to be paid. If it is not paid, interest is applicable.

The hon. Gentleman is becoming mixed up because of a comment that arose in our discussions this morning about clause 24. That clause allows us to revisit the available amount on the request of the defendant. My hon. Friend the Minister of State said that, if that revisiting takes place, any interest that has been paid can be taken into account. It would be hardly be just if it were not taken into account. That clause provides the ability for the available amount to be revisited. That procedure may result in a lowering of the amount required. Any interest that has been charged will be taken into account when the re-evaluation takes place.

David Wilshire (Conservative, Spelthorne)

The Minister raises another example of a point that I made about clause 7. I had not realised that it would apply to clause 13, too. We appear to have yet another clause that says what will happen. We have now been told that we can ignore the provisions under clause 13 if, under clause 24, we think that it is a good idea. I made the point on clause 7 and the Minister said that he would reconsider the matter. Does it not occur to him that the same stricture should apply under clause 13? If it is to be capable of being overruled, ignored or varied, it ought to say ``subject to the terms in clause 24''. We would then know where we stood.

Bob Ainsworth (Labour, Coventry North East)

If the hon. Gentleman is determined to be confused, he will be.

Clause 13 makes it clear that interest is payable on unpaid sums. Clause 24 allows for the available amount to be revisited. If the defendant feels that he can challenge the available amount that has been decided, he should be given the opportunity to do that. If, as a result of revisiting the available amount, it is discovered that it is far lower than that which was originally imposed, any interest that has been attached to the original available amount must be taken into account in the re-evaluation. I do not find that confusing, and I am unsure why the hon. Gentleman does.

Nick Hawkins (Conservative, Surrey Heath)

I can understand why my hon. Friend finds that confusing. As he has explained, he is not a lawyer.

In a genuine attempt to help the Government, I make a suggestion. Having listened to the difficulties that my hon. Friend has described, the Minister and his advisers should ponder whether, when the Bill comes to be reconsidered—or redrafted perhaps—clauses 13 and 24 ought to be combined, so that the two matters that relate to interest are included in the same clause. After all, the Government are always saying that they want to make legislation easier to read by ensuring that its language is nearer to plain English.

Bob Ainsworth (Labour, Coventry North East)

We gave an earlier commitment that we would consider redrafting the Bill. In principle, I am happy to look at any redrafting that might make the clause, and the Bill, easier to understand, but I do not believe that that would be the case with regard to the matter under discussion.

That will be established when we discuss clause 24. It addresses a different issue. It deals with situations in which a defendant has persuaded the court to revisit the available amount. In revisiting that, the court must bear in mind what is just. If the court decided that the available amount was half that which was originally decided, it would not be just for it to continue to insist on the payment of the interest on the original amount.

I will study the hon. Gentleman's suggestion, and we will attempt to make matters clearer, if it is decided that that is necessary. However, I believe that those two clauses address separate issues.

Question put and agreed to.

Clause 13, as amended, ordered to stand part of the Bill.

Clause 14 - Effect of order on court's other powers

Nick Hawkins (Conservative, Surrey Heath)

I beg to move amendment No. 60, in page 7, line 35, leave out subsection (7).

This is a probing amendment, and I do not want to hear any remarks from the Government Back Benches that it is intended to wreck the Bill.

We are puzzled—in much the same way as my hon. Friend the Member for Spelthorne was puzzled about clause 13. My hon. Friend the Member for Beaconsfield (Mr. Grieve) has apologised for his absence from the Committee, but he will return soon. He and I independently came to the same conclusion about subsection (7): it is, to be kind, inelegantly drafted—or, to be critical, it is extremely confusing. It is almost circular in how it operates. If the writers of ``Yes, Minister'' were writing today and wanted to give Sir Humphrey, in one of their famous scripts, a long paragraph to read out that left the Minister, the fictitious Jim Hacker, completely confused, they would choose something just like subsection (7). Hon. Members need only read it to themselves quietly, as I hope they, including Labour Members, are now doing, to realise that it is the sort of thing that baffles ordinary mortals.

I am sure that in a moment the Minister will come up with some good reasons why the Bill must include something along those lines. As I said in relation to a probing amendment, we are not trying to attack the intention in either subsection (7) or clause 14 as a whole. As the Government have made clear, the Bill hugely extends the Government's powers to stop the Mr. Bigs, in particular, as we have all called them—the serious drug dealers—from hanging on to their ill-gotten gains. Undoubtedly such a Bill should contain a clause that is designed to set out the effect on the court's other powers. We have no problem with the basic intention of clause 14, but we believe that there must be a simpler way, and one that would be easier to understand, to set out the point in subsection (7).

My hon. Friend the Member for Beaconsfield and I came separately to that conclusion. As the Minister and, by now, other Committee members know, we both spent many years in the courts dealing with both criminal law and complex civil matters and are therefore used to abstruse legal drafting. Long before I entered the House in 1992 and my hon. Friend the Member for Beaconsfield entered it in 1997, we often used to find that judges would ask, ``What on earth did Parliament mean when it introduced something as complicated as that?'' Members of the Bar and solicitors are familiar with being puzzled about that.

Following a much more recent decision that was not in force when I did the vast majority of my work in the courts, Pepper v. Hart, judges may now look at what Ministers say in debates in Committee in order to understand what Parliament intended. We must therefore be especially careful in our drafting and in what we say in Committee in order to ensure that points are refined. This is a Pepper v. Hart point.

Tom Harris (Labour, Glasgow Cathcart)

As the hon. Gentleman advised, I read the provision silently to myself. Not being legally trained, I, too, look forward to the Minister's comments. If the hon. Gentleman believes that the provision, whatever it says, is worthy of inclusion in the Bill, can he explain why his only amendment is to leave it out completely rather than frame a new form of words?

Nick Hawkins (Conservative, Surrey Heath)

The hon. Gentleman makes a valid point. I am especially glad to hear from him because he and I have just spent an extremely enjoyable lunch attacking the media in general and the BBC in particular. I thoroughly agreed with everything that he said, and I believe from what he said that he agreed with some of what I said over lunch.

Had my hon. Friend and I had more time, and had we not been under pressure to table a lot of other amendments, some of which related to very substantive matters and involved a real party political battle, we would have liked to try to redraft subsection (7). The hon. Gentleman makes a serious point, and the answer to his question is that if we had civil servants helping us, or more time, we would certainly have had a go at redrafting the provision. However, we had so little time to table our amendments on the big issues, such as clauses 70, 75, 11 and 6 and the civil recovery procedures—there are five areas where the major thrust had to be—that we simply ran out of time. I would have loved to do a redraft.

Paul Stinchcombe (Labour, Wellingborough)

What does the hon. Gentleman believe that the subsection means? Does he, like me, believe that it means that making a confiscation order does not restrict other sentencing powers?

Nick Hawkins (Conservative, Surrey Heath)

The hon. Gentleman may have suggested a good redraft to the Minister. That probably is what it means. That was certainly a summary that I had in my mind when I read it, and I hope that when the Minister replies we shall find that the hon. Gentleman and I are right about that. As a barrister, like me, with some experience of such matters, he will probably agree—whether he is prepared to say so on record is another matter; he may not want to upset his Whip—that it is not the most wonderful piece of drafting ever. He may think that recorders—one of whom he will probably be before long—and judges will wonder why on earth it was phrased in such a confusing, circular way.

I shall not bore the Committee by going on a great length. I have made the point, which is probing, and I hope that the Minister will tell us not only what the provision is about but that he is prepared to take it away and consider whether it could be redrafted.

David Wilshire (Conservative, Spelthorne)

As a layman, I shall try to be helpful to the lawyers—and I promise that I will not submit an invoice or ask for a fee. Occasionally, the common sense of the ignorant layman can throw light on such matters. I have read the relevant passage, and it would be an injustice to associate Mr. Hacker, Sir Humphrey—or even the Clerk's Department—with such a drafting. I want to test whether I can assist the Committee, and whether I understand it correctly. Subsection (7) states:

``No enactment restricting the power of a court dealing with an offender''—

in good, simple English, I think that means an Act that says that one cannot do something. It continues:

``in a particular way from dealing with him also in any other way''—

I take that to mean that one can do it in another way. Am I therefore to understand that if an Act says that one cannot do something, one can do anything else that one likes? If that is correct, the Bill, which already goes round and round in circles, is in utter confusion. Subsection (7) then says that the order should not

``restrict the court from dealing with an offender in any way''.

The Bill therefore says, ``But actually, you can do it in the first way if you like.''

Vera Baird (Labour, Redcar)

The hon. Gentleman's bill will not be paid.

I agree with the sentiments that have been expressed. Would it not be relatively easy to establish the operating framework if the subsection started with the penultimate line? I am not suggesting that it would be the perfect drafting, but the wording might then be something like this: ``The making of a confiscation order shall not restrict the court from dealing with an offender in addition in any other way it believes appropriate in respect of the offence.''

David Wilshire (Conservative, Spelthorne)

That is the first time I have heard a barrister offering free advice. It is probably sensible. I had no intention of sending in a bill for my advice, but I would still like to know from the Minister whether the Bill is saying, ``If an Act says you can't do that, you can't do it, but you can do anything else, and if that isn't adequate, you can do the first thing anyway, which we said you couldn't do.'' That is how I understand it.

Bob Ainsworth (Labour, Coventry North East)

Before I give the Committee the justification for subsection (7), I assure the hon. Member for Surrey Heath (Mr. Hawkins) and my hon. Friends that I have read it not only quietly but loudly, and I have tried putting the emphasis in different places. I have even read it to other people. At one point, in referring to the subsection, my ministerial brief says that ``it makes it clear''. [Laughter.] I thought that I should say that before giving the Committee the reasons why we want to keep the subsection in the Bill.

The effect of the amendment would be to create doubt as to whether the presence of a confiscation order inhibits the court from the exercise of its sentencing powers. The provision has featured in criminal confiscation legislation from the outset. Clause 14 sets out what effect a confiscation order has on the court's other powers to impose a sentence on a defendant on conviction. For example, subsection (2) states that

``The court must take account of the confiscation order before—

(a) it imposes a fine'',

or any other type of specified order, on the defendant. Subsection (4) makes it clear that

``the court must leave the confiscation order out of account in deciding the appropriate sentence for the defendant.''

That is subject to subsection (2).

Subsection (7)—this is where my brief says it makes it clear—makes it clear that if the court has the power to combine two or more sentencing disposals, the presence of a confiscation order cannot prevent the court from doing so. Under subsection (7), a confiscation order does not restrict any of the other disposals that a court may have. The wording has formed part of the law relating to confiscation since the Drug Trafficking Offences Act 1986. We considered the subsection's function and whether it was removable. If the hon. Member for Surrey Heath has spare time over his Christmas break, or if my hon. Friends would like to spend their time thinking of a suitable way to rephrase the passage, they would do the whole criminal justice system a favour.

We are advised that the contents of subsection (7) are understood and have been used for some time. Its removal would create uncertainty. For those reasons, notwithstanding my suggestion that the hon. Gentleman should formulate a better phrase, I ask him to withdraw the amendment and allow subsection (7) to remain part of the Bill.

Nick Hawkins (Conservative, Surrey Heath)

The Minister obviously had his tongue firmly in his cheek at the outset of his remarks. I was grateful to learn that he had problems with subsection (7), just as we did. He described how he went through the passage several times, putting the stress in different places. One can picture the Minister staying up into the small hours with a wet towel around his head, trying to make sense of it. The subsection is not easy to understand, and the hon. Members for Redcar (Vera Baird) and for Wellingborough (Mr. Stinchcombe) have come up with other ways of phrasing it that might address the problem.

The Minister has been very reasonable, and is reverting to the side of him with which we deal most often. I find that he is most reasonable when dealing with statutory instruments, rather than operating in strict accordance with Government briefs that criticise the Opposition. He is now in his normal mode as a reasonable and rational man. I am happy to accept his assurance that he is prepared to look at the matter again. Now that his officials have heard from the hon. Members for Redcar and for Wellingborough, they will do the same, and we may find that a Government amendment on the subject is introduced later.

Bob Ainsworth (Labour, Coventry North East)

I absolutely did not say that I wanted to look at subsection (7) again; I invited the hon. Gentleman, and my hon. Friends, to look at it again, if they so wished.

Nick Hawkins (Conservative, Surrey Heath)

The Minister reinforces his point wittily. I shall rephrase what I said: the Minister accepts that his officials should reconsider subsection (7) in the light of the helpful suggestions of his hon. Friends. We may find that a Government amendment is introduced that suggests something simpler and less like the work of Sir Humphrey. As the Minister has said that the passage must be reconsidered, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Nick Hawkins (Conservative, Surrey Heath)

I shall not detain the Committee. When I moved amendment No. 60, I said that we accepted that such provisions are needed in the Bill, and it seems only sensible that the Bill should contain something like clause 14. When the Minister responds, I should like him to say whether he is satisfied that subsection (3), which mentions the Powers of Criminal Courts (Sentencing) Act 2000, the Misuse of Drugs Act 1971 and the Terrorism Act 2000, covers all the ground.

I know that the Minister must read from a brief that says that everything is covered under subsection (3), but when considering such a large Bill, it is important to get something on the record about the cross-referencing between different pieces of legislation. Throughout the Committee, the Minister has said—quite rightly—that the Bill updates and extends existing law. I want to ensure that it is on the record that the Minister and his advisers are confident nothing has been missed. I do not know whether my hon. Friend the Member for Cities of London and Westminster, from his experience in the City, has been approached by any slightly worried organisations. Although I have pressed companies such as the British Bankers Association and individual banks to respond, I have not received details, although I have tabled amendments following contact with the Chartered Institute of Taxation.

I want this on the record because, as hon. Members will know, in Committee we sometimes find that we receive a brief that refers to the whole Bill, including matters that have already been debated when considering previous amendments and clauses.

David Tredinnick (Conservative, Bosworth)

Hear, hear.

Nick Hawkins (Conservative, Surrey Heath)

I know that my hon. Friend has extensive experience of such matters.

Mark Field (Conservative, Cities of London and Westminster)

My hon. Friend makes a valid point. Many members of the Committee will have received briefs from a variety of professional and public bodies. Nothing would be more of a crying shame than either lacunae or too much overlap. Such briefs provide opportunities, and with your leave, Mr. O'Brien, I hope that we could return to issues should we receive representations.

As my hon. Friend said, I have received briefings from organisations in the City which, although they—like the Conservative party—were positive about the overriding aspects of the Bill, nevertheless examined it clause by clause. Therefore, I endorse my hon. Friend's comments.

Nick Hawkins (Conservative, Surrey Heath)

The only chance that we will have to revisit the matter in this House will be on Report. That is why I want the Minister to comment on the whole clause, especially subsection (3). I am sure that he will have had briefing from his officials about its importance.

Bob Ainsworth (Labour, Coventry North East)

The clause is technical. It sets out the basic relationship between confiscation orders and other orders that may be made following conviction. It makes it clear that confiscation orders are not to be drawn into the global sentencing process. It also reproduces the effect of existing legislation. The hon. Member for Cities of London and Westminster asked a reasonable question, but we are not aware of any lacunae—to use his word. He will see that subsection (5) deliberately draws out compensation orders and proposes to deal with those differently.

Nick Hawkins (Conservative, Surrey Heath)

I am grateful to the Minister for that explanation. He simply says that the clause is technical, but will he give us further information about the way in which it will operate? I do not wish to delay the Committee, as I am sure the Minister appreciates, but it would be helpful if he could give us further details about the technical aspects of the clause, which I am sure he has been given.

Bob Ainsworth (Labour, Coventry North East)

As the hon. Gentleman knows, the clause is an attempt to set out the order in which we proceed, the point at which confiscation orders come in, and what must be taken account of before an order is made and what must not. I do not know what further information the hon. Gentleman wants. What are his worries, apart from the fact that we may not have covered everything? We believe that everything is covered, and we have reproduced provisions from existing legislation.

Nick Hawkins (Conservative, Surrey Heath)

I understand that the Minister has gone as far as he feels he can, and I am happy to leave it there.

Question put and agreed to.

Clause 14 ordered to stand part of the Bill.

Clause 15 - Postponement

Mark Field (Conservative, Cities of London and Westminster)

I beg to move amendment No. 103, in page 8, line 3, leave out subsection (3).

The rest of the debate is in Hansard.