Proceeds of Crime Bill

Public Bill Committee, 11 December 2001.

Standing Committee B

Proceeds of Crime Bill

Roger Gale (Conservative, North Thanet)

Good morning, ladies and gentlemen. As the Committee would expect, I have studied with great care the reports of its proceedings during my absence. I am pleased that it has made good—and good-humoured—progress, and I am sure that that can be maintained this morning.Clause 158 Making of order

Clause 158 - Making of order

Nick Hawkins (Conservative, Surrey Heath)

I beg to move amendment No. 368, in page 93, line 38, after 'lifestyle', insert—

', or is or has been a member of any terrorist or paramilitary organisation'.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to take the following amendments: No. 369, in page 94, line 1, after 'lifestyle', insert—

', or is or has been a member of any terrorist or paramilitary organisation,'.

No. 370, in page 94, line 2, after 'conduct', insert—

', or paramilitary or terrorist activities'.

No. 377, in clause 161, page 95, line 5, at end insert—

'(c) take account of the defendant's involvement in or membership of terrorist or paramilitary activity or organisation'.

No. 378, in page 95, line 5, at end insert—

'(c) take account of any previous convictions recorded against the defendant relating to terrorist or paramilitary activity, without regard to the date of any such conviction and ignoring for the purpose any contrary provision under Rehabilitation of Offenders legislation and ignoring any amnesty offered by any Government at any time for terrorist activity'.

Nick Hawkins (Conservative, Surrey Heath)

This is an important group of amendments, along with amendment No. 371, which is not part of the group that we are about to discuss, but which we shall debate later. Conservative Members take exceptionally seriously the subject of terrorists and paramilitary violence in Northern Ireland, and I hope that Labour Members will not make attempts at point-scoring this morning by suggesting that we are trying to water down the Bill. Given the seriousness of the issues in Northern Ireland, we are making a conscious effort to influence the Government to toughen up the Bill. We hope that the Minister and the Under-Secretary of State will accept the amendments in the spirit in which they are intended. They are a serious attempt to confront such issues.

Many Conservative Members have had extensive experience of dealing with Northern Ireland issues. I dealt with many such matters when I held my first junior job in the Ministry of Defence under the Conservative Government in the mid–1990s, and my hon. Friend the Member for Spelthorne (Mr. Wilshire) has even longer experience of Northern Ireland issues. Since the Labour Government came to power, they have made concession after concession—action that we have repeatedly described as unwise.

In referring to amendments that would introduce specific references to terrorist and paramilitary activities, I make no apology for talking about general involvement in criminality. Anyone who has had dealings with that troubled Province knows that terrorist and paramilitary organisations have for years, if not generations, added to their funds by their active involvement in what, on the mainland, would be called crime. Paramilitary and terrorist organisations are involved in racketeering. Labour Members have talked repeatedly about Mr. Bigs in cities such as Glasgow on the mainland, but the Mr. Bigs in Northern Ireland are not merely criminal racketeers, which is bad enough, but are involved in terrorist and paramilitary organisations.

In passing, I must say that I reject with utter contempt the views expressed last week by the right hon. Member for Hartlepool (Mr. Mandelson) when he said what one of our great national newspapers rendered as:

''Britain has no stomach for IRA fight'',

adding that the right hon. Gentleman had also predicted a united Ireland. Those words were rightly rejected by the Government, and I would not accuse either the Minister of State or the Under-Secretary of holding those views. They take such issues seriously, but I wanted to reinforce how strongly we reject the views held by the former Secretary of State for Northern Ireland.

I turn now to the detail of the amendments. Amendment No. 368 would insert, after the words ''criminal lifestyle'':

', or is or has been a member of any terrorist or paramilitary organisation'.

We are talking about the proceeds of crime, so it should be specified in the Bill that there is a link between the new draconian provisions and those who have been involved in terrorist or paramilitary organisations. That would strengthen the Bill. We will be interested to hear whether the Under-Secretary has any particular reasons why that should not be included. Related issues have been debated in the Chamber, in the context of the Government's current anti-terrorist legislation. My hon. Friend the Member for West Dorset (Mr. Letwin), the shadow Home Secretary, has repeatedly pressed the Government to include in that legislation provisions governing terrorism committed within the United Kingdom. I am making the same kind of point.

Our amendments may not be perfectly drafted. I accept that Ministers may say: ''Well, we are happy with the general concept, but we think that the drafting could be improved.'' I shall be delighted if the Under-Secretary says that the Government will come back with some similar Government amendments on Report or in another place.

Amendment No. 369 is consequential on amendment No. 368. When I reread the amendment that my hon. Friend the Member for Beaconsfield (Mr. Grieve) and I drafted hastily in advance of this morning's debate to ensure that our amendments would not be starred, I knew that I must stress the fact that in subsection (4)(c), the word ''not'' should govern the entire phrase as it would be if our amendment were made. In case anyone thought we were trying to water the provision down, I must explain that paragraph ( c) as amended would read, ''if it decides that he does not have a criminal lifestyle or is or has been a member of any terrorist or paramilitary organisation''. Perhaps, for clarity, we should have inserted a second ''not''. Amendment No. 370 is also consequential on amendment No. 368.

Amendment No. 377 would add new paragraph (c) to clause 161(2). It is designed to take account of the defendant's involvement in, or membership of, terrorist or paramilitary activities or organisations. The amendment would be inserted after the provision under which the court must

''take account of conduct occurring up to the time it makes its decision''

and

''take account of property obtained up to that time.''

That is a separate point, and it will be important when the court is considering the defendant's past conduct and benefit. In the context of Northern Ireland, the court should also properly take into account whether the defendant has been actively involved in terrorist or paramilitary activity.

Amendment No. 378 also relates to clause 161 and would add another extra paragraph, which also appears on the amendment paper as paragraph (c). Of course, if amendment No. 377 were accepted, the paragraph in amendment No. 378 would become paragraph (d). Amendment No. 378 also raises an important point. It would ensure that the court also took into account

''any previous convictions recorded against the defendant relating to terrorist or paramilitary activity, without regard to the date of any such conviction''.

The court should ignore

''any contrary provision under Rehabilitation of Offenders legislation and ignoring any amnesty offered by any Government at any time of terrorist activity''.

I have already referred to our strong and consistent concerns about terrorist amnesties. My right hon. Friend the Member for Richmond, Yorks (Mr. Hague), the former Leader of the Opposition, repeatedly challenged the Prime Minister on many occasions about prisoners being released in the Province of Northern Ireland without anything being given back. Opposition Members are still concerned that far too much is given away to the terrorists without receiving any benefit in return. We want the peace process to succeed, but we do not think that concessions are the way to achieve that.

What will happen when, after the Bill is enacted, a terrorist or paramilitary racketeer comes before the court? The court should have the power, when forming a picture of a defendant, to take into account whether he or she has ever been involved in any paramilitary activity. We do not believe that amnesties, early releases or the Rehabilitation of Offenders Act 1974 should prevent the court from considering those matters.

It is essential to be aware that many of those at the most senior levels of terrorist and paramilitary organisations have achieved those positions without acquiring any serious convictions. Some may have only minor convictions for disorder, perhaps 20 years earlier. Nevertheless, those people are the Mr. Bigs, like those whom the Government says that the Bill is intended to catch on the mainland.

I hope that the probing amendments will find some favour with the Government, and I hope that Ministers and their advisers will understand the serious spirit in which we have introduced them. We are not saying that the drafting is perfect. The Government may, if they accept the spirit of what we are trying to do, table their own amendments, which we will consider in a similarly serious way. I shall finish now, as some of my hon. Friends want to contribute to the debate.

Roger Gale (Conservative, North Thanet)

I have looked at this morning's business in the light of the requirements of the timetable resolution, which states that we must reach clause 244 by the end of the sitting. If they are not debated, a significant number of important Government and Back-Bench amendments will be decided upon on the nod at 1 o'clock. I therefore propose to be as lenient as I can regarding the breadth of the debate on the first group of amendments, in order to allow all hon. Members to express their views as widely as possible. I shall then be particularly rigorous regarding what is relevant in the stand part debates and other debates. In other words, if you have something to say, try to say it now. You may not get the chance later.

David Wilshire (Conservative, Spelthorne)

Thank you, Mr. Gale, for explaining the ground rules so helpfully. There are some serious general issues that must be ventilated, but I accept that we must ventilate them only once, even if they recur throughout the Bill.

Perhaps Opposition Members should explain why we are raising the subject of terrorism. The Government could respond by asking why we should have the provisions that we suggest for Northern Ireland but not elsewhere. I readily accept that criticism. As my hon. Friend the Member for Surrey Heath (Mr. Hawkins) has explained, we are not legal draftsmen, and if the Government think that there is some substance in our argument, better wording could well be used.

Although the amendments relate to Northern Ireland, I do not advocate that Northern Ireland should be treated specially, and differently from the rest of the United Kingdom. If the our provisions were to find favour, we would argue that they should be incorporated in the parts of the Bill that relate to England, Scotland and Wales as well. If we had spotted the issue at the beginning of the Committee's proceedings, we could have debated it when we considered the provisions for England—but we did not. I put that on the record, so there is no misunderstanding. We are not arguing for special treatment for Northern Ireland terrorists; we believe that everyone should be treated the same.

Steve McCabe (Labour, Birmingham, Hall Green)

Does the hon. Gentleman agree that being a terrorist or a member of a paramilitary organisation in itself constitutes a criminal lifestyle?

David Wilshire (Conservative, Spelthorne)

I accept that it can do, but I shall explain later why I believe that there is a distinction, and why a distinction is necessary. I hope that the hon. Gentleman will bear with me. He makes a valid point.

Some people, both in the Room and elsewhere, will be conscious of my contributions to debates on Northern Ireland in the past. However, the issues that I have raised in the past are not relevant to the Committee, and I do not intend to discuss them here. In the past I was speaking for myself, and any comments that I have made in the past should not spill over into a contribution being made today by a representative of the Opposition Whips Office.

Today's debate is about terrorism in general. For this morning's purposes, I draw no distinction between terrorists, whatever the motivation, and whether they are in Northern Ireland, the rest of the United Kingdom or the rest of the world. As far as I am concerned—and I am sure that this goes for everyone else in the Committee, too—all terrorism is to be condemned and all terrorists, whatever their persuasion and whichever part of the divide they come from, are equally guilty of the same atrocities and crimes, and we must deal firmly with them all.

I do not believe that my hon. Friends and I are pursuing an Opposition agenda. I believe that we are pursuing a laudable Government objective in strengthening the hand of the Government and law enforcement agencies against terrorism in the United Kingdom.

To understand why we should specify what is suggested as well as referring to criminals, we also need to understand the nature of the problem with which the amendments are intended to deal. There is little doubt in my mind, and there seems to be no doubt in the Government's mind, that organised crime in Northern Ireland is a serious problem. To quote the Secretary of State for Northern Ireland:

''The transformation of Northern Ireland society promised in the Good Friday Agreement is already underway. The next great challenge is to build a society worthy of the next generation. To achieve that, this generation cannot tolerate or overlook those who refuse to give up their profitable criminal activities—from drugs to vehicle theft, counterfeit goods to extortion.''

It is a serious problem, as the Government recognise, and the amendments are intended to help them deal with it.

It helps to be clear about the sums involved: this is not petty crime or petty extortion. I draw the Committee's attention to an episode in October when illegal goods worth half a million pounds were seized in County Armagh, which followed the seizure of £700,000 worth of counterfeit goods in County Antrim. Two recent episodes in one month involved £1.2 million worth of counterfeit goods—and that is the tip of an iceberg. It is important to deal with the particular crimes and particular nature of activity in Northern Ireland.

We also need to understand what the Government have done thus far. Their response has been to set up an organised crime taskforce, which they did early last year. On 23 March it produced a threat assessment that identified some 78 groups involved in organised crime in Northern Ireland, and about 400 participants in organised crime. That may not sound like many people, but if we compare the population of Northern Ireland with that of England, that number is the equivalent of about 12,000 people being engaged in organised crime in England. In terms of the percentage of the population involved, that is serious. Of those 78 groups and 400 people, the Government's taskforce estimated that half were in some way linked to paramilitary activity.

It is clear that the Government have established that there is a serious problem of organised crime and that large sums are involved. In response to the point made by the hon. Member for Birmingham, Hall Green (Mr. McCabe), I must emphasise that it is not only ordinary criminals—if that is the phrase—who are involved. The activity is driven by the paramilitaries, and it is correct to address that group over and above criminals.

The types of activity that we are discussing are covered by later amendments, so I will not stray down that route, apart from commenting that the organised crime taskforce has assessed the situation. Its conclusion about the types of crime that we wish to deal with is summarised in its document, which says:

''The legacy of terrorism is a significant influence. More than half of the groups known to police are either associated with, or controlled by, Loyalist or Republican paramilitary organisations. In some criminal areas such groups are predominant. The pervasive existence of some local problems—notably extortion—can be traced directly to terrorism. Some important local criminals derive their influence/status directly from their current, or historic, paramilitary links.''

That last point is relevant to an understanding of the difference between criminal activity and terrorist activity. What terrorists gain includes influence and status, and there are further considerations that distinguish the terrorist from the criminal, because this is about more than individual financial benefit, which we have been discussing thus far. I will elaborate on that aspect in due course.

It is interesting that the Government have worked out a system in Northern Ireland that we appear to be following. As the Committee will know, the Proceeds of Crime (Northern Ireland) Order 1996 was introduced in Northern Ireland as an attempt to deal with the problem. The order has proved successful, as I noted from the Belfast Telegraph of 6 November. This will be a sorry tale for some members of the Committee, because the first victim caught in the net of the order, which deals with money laundering among other matters, was a Belfast solicitor. He was the first person in Northern Ireland to be charged with money laundering.

The Government have gone down this route, and it requires strengthening. The amendments would help. If one listens to the politicians in Northern Ireland with the greatest experience, it is clear that we must do more than we are doing now. I shall cite just one example to demonstrate that point. When the right hon. Member for Upper Bann (Mr. Trimble) addressed the Labour party conference in October, he urged the Government to match their seizure of Taliban assets in the United Kingdom with a crackdown on the profits of terrorist groups in Northern Ireland. One of the leading figures attempting to create a new society in Northern Ireland is asking us to do more. We should approach the amendments in that spirit, because they would help the Government to make a greater impact.

I now turn to the amendments themselves, and I shall try to answer any questions. Amendments Nos. 368 and 369 would add a terrorist lifestyle to the definition of a criminal lifestyle. Of course, it would be out of order to return to the question of what a criminal lifestyle is—

Roger Gale (Conservative, North Thanet)

Yes, it would.

David Wilshire (Conservative, Spelthorne)

None the less, one must make a contrast. I refer hon. Members to the debate that we had about that, because we had a clear image of the Range Rover and other aspects of a criminal lifestyle—[Laughter.] I am only quoting what other people said; I am not making that up. The hon. Member for Glasgow, Pollok (Mr. Davidson) is not here now to add a graphic description in his Glaswegian dialect, but we can refer to Hansard to discover how the criminal lifestyle was described. The important point is that that is very different from the terrorist lifestyle, and we should draw a distinction between the two.

The terrorist is the opposite of the flash, obviously wealthy criminal. The terrorist sets out to be ordinary and inconspicuous, and to ensure that he cannot be accused of having any of the characteristics that we talked about—and cannot talk about again, Mr. Gale. If such accusations were levelled at terrorists, that would draw attention to them.

We are talking about a group of people who appear to lead very ordinary lives. The most remarkable thing about the perpetrators who have been brought to trial for terrorist incidents in Northern Ireland or England is that they are ordinary and inconspicuous people, and that for long periods, they do not fraternise with anyone else in the terrorist world. That is not how the criminal fraternity tend to behave, as I gathered from that debate that we cannot have again.

Terrorists are often inconspicuous loners who do not get noticed, and who would not be caught by the definition of a criminal lifestyle—in fact, their lifestyle is the exact opposite of a criminal lifestyle. If amendments nos. 368 and 369 are not adopted, someone who ought to be caught in the net could say in his defence, ''But I don't have a criminal lifestyle.'' However, it might be straightforward to demonstrate that he is involved in terrorism.

There is another difficulty: a conclusion must be come to about what constitutes membership of a terrorist organisation. I anticipate that some Labour Members might ask me to explain how we would identify someone as a terrorist, because such people do not carry membership cards advertising that they belong to a terrorist organisation. To identify such people, considerable emphasis will have to be placed on the police and the security services, and provisions exist that address that need. A problem will arise between the House and the other place over the coming 48 hours, with regard to identifying terrorists and deciding what rights they should have. That issue spills over into the legislation under discussion.

Another important question might be asked: what do I, and other hon. Members, mean by the phrase ''terrorist organisation''? I do not draw a distinction between terrorist organisations and the political parties that represent them—between, for example, Sinn Fein and the IRA, or the Progressive Unionist Party and its paramilitary godfathers. Someone who is involved in what might be termed the respectable end of terrorist activity should be caught by the legislation as much as should the person who carries the gun or plants the bomb. It should not be the case that a gun-carrying terrorist is caught by the legislation, but someone who pleads that he does not carry a gun but is merely the official spokesman of the terrorist organisation, is not caught by it. We should be able to catch anyone who has anything to do with terrorist activity: I am talking about someone who will not unequivocally denounce all kinds of terrorist activity, violence and criminal activity.

Amendment No. 370 introduces the notion of ''benefiting from'' terrorist activities. It could be argued that many terrorists are not wealthy individuals. However, there is plenty of evidence—and I will not bore the Committee by referring to it, unless hon. Members insist—of personal wealth being generated by certain members of terrorist organisations. The simple reason for that is that large sums are involved. It would therefore be foolish to say that, just because people who have a terrorist lifestyle do not look wealthy and are not flash, they have not managed to stash away a fair amount of money somewhere.

I have stayed in hotels in the Republic of Ireland that are notorious for being funded by terrorist money. There are plenty of examples of that sort of thing. Another thing that one must understand about the wealth of terrorism is that it will be incredibly difficult to make a defence—

Steve McCabe (Labour, Birmingham, Hall Green)

I want to make sure that I did not misunderstand the hon. Gentleman. Did he say just moments ago that he knowingly stayed in hotels that were fronts for terrorist activity? How did he justify that behaviour?

David Wilshire (Conservative, Spelthorne)

I did not say that they were fronts for terrorist activity. I did not know of their connections until I got there and was subsequently enlightened. When I stayed in such hotels, I had been booked into them by the Irish Government, and had meetings with TDs—Members of the Dail—so I did not set out to aid and abet any sort of terrorism. I understand the hon. Gentleman's point, and my defence is that I only discovered all that afterwards; I hasten to add that I have not been back to any of those hotels.

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

Ignorance is no excuse.

David Wilshire (Conservative, Spelthorne)

Ignorance may indeed not be a defence.

My point about the phrase ''benefited from'' is that if you were—I do not mean you, Mr. Gale; I should say, if I were a terrorist—[Interruption.] I managed to avoid that one. If I were a terrorist and robbed a bank, it could be argued that I was not doing that for myself, and that the proceeds of the crime belonged to an organisation. That is why it is important to understand that such organisations do not have membership cards. I would therefore argue that something that might appear to be communal wealth is also the individual wealth of the person who robbed the bank.

Will the Minister assure me that if I were to rob assorted banks, threaten to kneecap people unless they paid me protection money, and run black taxis and pocket the proceeds, the fact that I had passed on the money to my godfathers in terrorism would not prevent that money from being taken away under what will be the Proceeds of Crime Act? I hope that if a terrorist is convicted of a crime involving the obtaining of large sums of money, even if it is argued that that is now in the hands of a paramilitary organisation rather than an individual criminal, the amendments will cover that point. If not, I hope that the Government will table amendments to make it crystal clear that in the event of a terrorist being convicted of obtaining £1 million by threatening to kneecap people, that £1 million can be seized, just as terrorist money has been seized from bank accounts in this country. Perhaps the anti-terrorist legislation will necessarily deal with that, but I would be grateful for the Government's comments.

Not only is there a difference in lifestyle between terrorists and ordinary criminals, but it is notoriously difficult to press criminal charges against terrorists, for the simple reason that witnesses are required. Witnesses usually want to stay alive, so they tend to become very quiet. If one looks at the situation that has developed in the United Kingdom through the terrorist experience in Northern Ireland, one will find that many people are clearly identified as being involved in terrorism. The membership of the Army Council of the IRA is well known, and the individuals are identified, but it is not possible to get people to go to court to give evidence against them. Relying on the definition of a crime to take action against criminal activity, and on obtaining convictions simply for the committing of crimes, patently does not work in the case of terrorism. It is therefore important that we include terrorist activity per se in the Bill.

Another reason why it is important that we take this route is the question of amnesties and pardons, which my hon. Friend the Member for Surrey Heath touched on, and to which one of the amendments refers. During a previous sitting, I referred to the fact that somebody who has been pardoned may still be guilty—but the Government have chosen to say that if somebody is pardoned, they are exempt from certain parts of the Bill. In attempting to create a different society in Northern Ireland, the Government—I do not confine this comment to the current Government, as the previous Government took much the same view—have decided that the sensible thing is to release terrorists from jail and introduce amnesties.

In many respects, the Government are saying that such terrorist activities are a thing of the past, and we must build for the future. I am anxious that that should not be used as a defence against action for the money that has been taken. It may seem a good idea to release terrorists and provide them with amnesties and pardons in order to build a new society, but that is not sufficient justification to allow them to retain the money that they have obtained in the past. Given the evidence available, the comments of the Secretary of State for Northern Ireland and the organised crime taskforce research, it has become clear that, notwithstanding the amnesties, the early releases, the pardons and the ''new start'' philosophy, organised crime by paramilitary groups continues. The amendment concerning amnesties is intended to make sure that, irrespective of what happens in the future, if somebody continues to benefit, or has benefited in the past, from the proceeds of crime, they cannot use as a defence in proceedings under the Bill the argument that, as they have been given an amnesty by the Government, they are not guilty, and the legislation does not apply to them.

We are talking about big sums of money, a phenomenon that is not—thank goodness—typical of other parts of the United Kingdom, and a group of people who do not fit into the common definition of ''criminal lifestyle''. They are a menace, they are rich, and, as we will show when we discuss the amendment that refers to adding to the list of crimes, they are engaged in a series of unpleasant activities, from which they profit. If I understand the Government correctly, they want to ensure that people do not profit from crime. On this occasion, although we might have appeared to be trying to soften the effects of the Bill during the past few weeks, I hope that the Government will accept that we are trying to strengthen their hand, strengthen the Bill, and deal with a specialist criminal activity that is abhorrent to all of us.

David Tredinnick (Conservative, Bosworth)

It is always a pleasure to serve under your chairmanship, Mr. Gale, and I am grateful to have this opportunity to speak to the amendments. As I was looking at the amendments last night, I pondered about which of the Ministers would want to respond to the debates today. I reflected on whether the Committee would have the benefit of the considerable charm of the Minister of State, Scotland Office. All Opposition Members noticed the generous remarks that he made about the father of my hon. Friend the Member for Beaconsfield, whom he knew in the House. The Minister has served in the House for more than 20 years, and formerly represented South Ayrshire; he has now been transferred across from his former duties of writing cheques for the deserving poorest countries.

However, I understand that the hon. Gentleman is not going to perform today, and that it will be the Under-Secretary—[Interruption.] I was trying to be generous, in the hope of attracting favourable concessions later. The Under-Secretary was a metal worker for many years, and a shop steward. Many of my constituents work in his constituency. He was the senior Lord Commissioner to the Treasury in the previous Parliament. My hon. Friends may think that that sounds like a friendly occupation, but the Under-Secretary was an enforcer. He was one of the hard men in the Labour party, whose job was to squeeze the breath out of Members who were recalcitrant—

Bob Ainsworth (Labour, Coventry North East)

A miserable git.

Roger Gale (Conservative, North Thanet)

Order. I am not entirely certain that ''miserable git'' is a parliamentary expression—nor am I certain that undue flattery is in order. The Committee should return to the amendment under discussion.

David Tredinnick (Conservative, Bosworth)

I did not realise that I had strayed, Mr. Gale—but I shall not now go on to describe the hon. Gentleman as a parliamentary anaconda, as I had been minded to do. None the less, I am seriously worried about addressing the Committee this morning, because I have a document here that says: ''Labour thugs attack MP.''

Roger Gale (Conservative, North Thanet)

Order. I may expect members of the Committee to stray from the subject of our discussions on one occasion, but I do not expect to have to tell them twice about such matters.

David Tredinnick (Conservative, Bosworth)

I am grateful to you, Mr. Gale, for reining me in, but I want to refer to the document. I gather that the hon. Member for Shrewsbury and Atcham (Mr. Marsden) has now departed from the life of the new Labour party.

Steve McCabe (Labour, Birmingham, Hall Green)

Will the hon. Gentleman give way to me? I am only giving him time while he writes the next part of his script. Surely he is not accusing the hon. Member for Shrewsbury and Atcham of having a criminal lifestyle, or having joined a paramilitary organisation.

Roger Gale (Conservative, North Thanet)

Order. Hon. Members are well aware that I allow some levity in our proceedings, as do all Chairmen. However, we have a considerable number of clauses to debate, and if the hon. Member for Bosworth (Mr. Tredinnick) cannot get back to the matter in hand, I shall call the Under-Secretary to wind up the debate.

David Tredinnick (Conservative, Bosworth)

I shall certainly not try to work out whether terrorist activities have been employed against the hon. Member for Shrewsbury and Atcham. It would be wrong to do that. Instead, I shall offer the Committee details of my experience of the matters to which the amendments relate. When I was 19 years old, I was in the Army in Northern Ireland. [Interruption.] I see that the Minister is being smothered by the Whip, the hon. Member for Stirling (Mrs. McGuire).

I shall be flippant no longer, Mr. Gale. I am grateful for your leniency, of which I have perhaps taken advantage, but now I want to raise some serious issues. I am not sure whether other members of the Committee have had the experience of being in the Army in Northern Ireland in a terrorist situation. When I was 19, we marched into Londonderry off a ship in the Foyle to try to restore order. Looking back, it seems strange how crude our techniques were compared with the rather more sophisticated techniques that are used today. If there were rioters, we would unfurl a banner, one side of which said: ''Disperse or we fire.'' On the other side, it said: ''Anyone crossing this line will be shot.'' There were colonial riot drills that had been used in Cyprus. We could learn a lot from that time about how to deal with terrorist groups and win over hearts and minds, and the lesson could be learnt in Palestine and Israel.

Amendments Nos. 368 and 369 are intended to give the Bill greater force by adding the idea of a terrorist lifestyle to that of a criminal lifestyle. One point that became crystal clear when I was in Northern Ireland was how all-pervasive terrorism is, and how it does not mean simply that there are people on the streets throwing petrol bombs. There were men who organised such terrorist activities, and the support structure went far beyond one or two individuals armed with armalites or other equipment. I put it to the Under-Secretary that a wide range of support structures are in place for terrorists. I shall list some of them.

First, there are the munitions holders. In all the houses on the front line in Belfast or Londonderry, there would be weapons dumps. Householders would be required to store equipment; that was the status quo. Fortunately, the peace process is apparently succeeding in Northern Ireland, but if things deteriorated in that theatre or elsewhere, the status quo ante could recur. The munitions holders are crucial. There are also those who provide safe houses, into which terrorists can disappear if necessary.

There are also the allegedly bona fide businesses, such as the construction industry, which is important in Northern Ireland. I attended a conference a few years ago with the British-Irish Inter-Parliamentary Body—I see the Under-Secretary nodding—in one of the border counties; I think it was Cavan. I was struck by the sight of a hotel complex in the middle of nowhere, built to a very high standard, with a lot of cement. I made inquiries, and by the end of our stay, which lasted a few days, I was certain that the money to build the hotel had come from unorthodox sources.

My hon. Friend the Member for Staines—sorry, I mean Spelthorne; that does incorporate Staines—mentioned black taxis. We have all heard that black taxis are a massive racket on both sides of the line of the Shankill road. There are many people operating such cabs, and they should be covered by the provisions.

There is also the issue of massive organised benefit fraud. Many people assist terrorism through such fraud. There are also the people who work petrol rackets, using the difference between the cost of petrol in the Republic and in Ulster. That, too, should be addressed. There are the farming fiddles, too. We have all heard stories of pigs being driven across the border, and other methods of defrauding the state.

My hon. Friends on the Front Bench may want to think more carefully about where we draw the line on what we should add to the definition of ''criminal lifestyle''. What, for example, should we do with farmers who move animals around and contribute to the coffers of terrorists in their area? There are also the protection rackets: people visit housing estates, businesses, garages or restaurants and demand protection money.

I have tried to list some of the activities that make up a sort of terrorist mountain. I use as an illustration the arrest in New York of the Genovese family—an allegedly criminal family. Their lifestyle epitomised much of what has gone on in Northern Ireland, too. They were involved in every conceivable racket under the sun, and terrorists in Northern Ireland are involved in the same range of activities.

Amendments Nos. 368 and 369 would include terrorist activity in the ''criminal lifestyle''. The situation in Northern Ireland is different from that in the mainland UK, and we were right to table the amendments. Northern Ireland has always been a special case.

Steve McCabe (Labour, Birmingham, Hall Green)

I draw the hon. Gentleman's attention to the fact that his hon. Friend the Member for Spelthorne said that if he had spotted the issue earlier, the Conservatives would have tried to applied the conditions to all parts of the UK. Is a difference of opinion emerging?

David Tredinnick (Conservative, Bosworth)

We discussed the amendments privately. The principal reason for tabling them is to address specific issues. Conservative Members do not have a fixed view about those issues. The point of probing amendments is to get the Government to think about things, and I applaud the Under-Secretary because he is thinking about things; he has nodded assent on several occasions.

Steve McCabe (Labour, Birmingham, Hall Green)

Perhaps he is just nodding off.

David Tredinnick (Conservative, Bosworth)

Criminality and terrorism go hand in hand. In Northern Ireland, criminality tends to be of a terrorist nature, and if somebody transgresses against an organised criminal group, they might not merely get thumped; their kneecaps might get blown off, their house might get burnt down, or they might get murdered or tortured—a fate that befell a brother officer in my regiment.

In Northern Ireland stones get thrown, and people explode pipe bombs outside schools to dissuade parents from walking their children there by a particular route. Criminality is seldom dissociated from terrorism there. With regard to the Bill, we must take account of the fact that Northern Ireland is a special case.

I have given misplaced plaudits to the Under-Secretary. Apparently he will not speak this morning. However, as he is a fellow representative of a midlands constituency, I will try to put him in the right frame of mind. I will try to persuade him not to be curmudgeonly—a term loved by lawyers—but to be helpful and kind in his approach.

I have highlighted two key areas. First, terrorism in Northern Ireland is characterised by a wide-based pyramid of funding, and activities that are largely unique to that part of the United Kingdom. Secondly, criminality and terrorism go hand in hand there, because much criminality is terrorist activity, such as burning and kneecapping. The Bill must take account of all of that.

Boris Johnson (Conservative, Henley)

I fully echo the flattery that has been heaped on various Labour Members by my hon. Friend, and I wish to respond to a point that was raised by the hon. Member for Birmingham, Hall Green. He doubted whether it was necessary to interpose the reference to terrorism and paramilitary activities, because he thought that they might be captured by the phrase ''a criminal lifestyle''. Although I do not wish return to that unhappy debate—and I am sure that if I did return to it, I would be ruled out of order—a few remarks should be made on the subject.

Clause 75 is the key clause for the definition of a criminal lifestyle, and I am sure that the Minister will refer to it. However, I am unsure whether membership of a terrorist or paramilitary organisation would be captured by that clause, because it is ambiguous, to say the least, about whether the Government believe that being a member of a terrorist or paramilitary organisation constitutes criminal conduct. Many terrorists and paramilitaries have been released early from prison, thereby giving the impression that they have committed a unique kind of crime that the law can treat differently.

Moreover, people who we know are important members of terrorist and paramilitary organisations are elected to the House; they are also welcomed at Downing street, for example, and they play important roles in the peace process.

There may be good reasons for that. It may result from the hard necessity of trying to reach a peaceful conclusion in Northern Ireland. None the less, we should recognise their membership of such organisations—I think that Martin McGuinness has returned as chief of staff for the IRA.

Nick Hawkins (Conservative, Surrey Heath)

Does my hon. Friend accept that one of the problems for any Government dealing with issues in Northern Ireland is the way in which people who have been fairly open about their involvement with paramilitary organisations have tried to reposition themselves? That is why one of our amendments refers to ignoring amnesties and the rehabilitation of offenders legislation. If the people who have skilfully repositioned themselves found themselves before the courts, their early record should be taken into account.

Boris Johnson (Conservative, Henley)

I agree with my hon. Friend. My point is simple. I am not sure that terrorists would be caught by clause 75, because it is not clear that they are treated as terrorists: they are welcomed by the Government and let out early. My hon. Friend the Member for Bosworth graphically explained the horrendous activities in which they engage, which generate huge amounts of money. We all want to take that money away. It would be a useful amplification if the amendment were accepted to make it clear that membership of a terrorist organisation would provoke the expropriation of a person's assets.

I am sure that both Conservative Members and the Government would want to show that they are tough on terrorists. The Minister should realise that our amendments contain a great deal of logic.

Mark Field (Conservative, Cities of London and Westminster)

Thank you, Mr. Gale, for calling me to speak. I shall do so briefly, because the amendments have already been fully discussed, at least by Conservative Members.

It is important to stress that the idea of a criminal lifestyle, which we have previously discussed at length, is a triggering mechanism. Likewise, the additional wording proposed would influence the trigger mechanism from which everything else might flow. The Bill contains a separate part 4, so the rules for Northern Ireland could differ from those for the rest of the United Kingdom. However, as my hon. Friend the Member for Spelthorne explained, Conservative Members had not considered all the implications until examining Northern Ireland in the same way as we had previously considered England, Wales and Scotland. Given the reality of what occurs on the ground in Northern Ireland, it would be proper to include in the Bill wording relating to membership of a terrorist or paramilitary organisation. I stress that that should be a trigger mechanism before everything comes into play, rather than an implication of guilt.

We have gone round the houses, and my hon. Friends the Members for Bosworth and for Surrey Heath went into detail about what might be caught by the legislation, so now I shall sit down and allow the Minister to explain why he will resist the amendments—or if there is a change, that we have held some sway.

Bob Ainsworth (Labour, Coventry North East)

I will devote no more than two sentences to the less serious aspect of the debate. I was the Whip of the hon. Member for Shrewsbury and Atcham for four years, and to my knowledge he has not accused me of threatening or assaulting him—although I am sure that he is capable of getting round to that in time.

I shall follow the strictures of the hon. Member for Bosworth and try to not be curmudgeonly, but I shall accept the debate in the way in which the hon. Member for Surrey Heath framed it. That is not an attempt at point-scoring or time-wasting, and on those terms, I accept the strictures of the hon. Member for Bosworth.

Amendments Nos. 368, 369, 370, 377 and 378 would widen the criteria for the making of confiscation orders and the assessment of the benefit of a person's criminal conduct to include either membership of a terrorist organisation or a paramilitary organisation. The effect would be that the court would have to consider whether someone convicted of any offence—not necessarily a terrorist-related one—is or has been a member of a terrorist or paramilitary organisation, and if it concludes that he is or has been, it must confiscate the benefit of his terrorist activities.

The clauses that the amendments would amend reflect clauses 6 and 9, but the amendment seems to apply only to Northern Ireland. Hon. Members have given various explanations for that, including the idea that something different is necessary for Northern Ireland—but that if they had thought of it earlier they would have said that it should apply far more widely. [Interruption.] I am not trying to expose a split in the Opposition.

David Wilshire (Conservative, Spelthorne)

To help the Minister, I can explain that we are suggesting that certain activities are especially prevalent in Northern Ireland. My hon. Friend the Member for Bosworth mentioned kneecapping. It is a feature of Northern Ireland society that unpleasant things happen. That much we accept, and it is a special case. The point that we are all trying to make is that it does not matter whether the kneecapping takes place in Northern Ireland or England. It should be covered wherever it happens. However, I am thankful to be able to say that some activities do not take place in England, Wales or Scotland. That is the distinction. I believe that the Minister would agree that it would be necessary to include such a provision in earlier clauses, too.

Bob Ainsworth (Labour, Coventry North East)

The hon. Gentleman is absolutely right. That does not and should not matter. If the matter were not adequately covered in other legislation that has already been made into Acts of Parliament or is currently going through the parliamentary process, it would be essential to consider amendments such as he suggests. However, I hope to persuade him that that is not so, and that those issues are adequately covered either in this Bill or in other measures, whether those are currently going through the parliamentary process or have already been passed.

Hon. Members will be aware that the Government are taking steps to update and amend anti-terrorist legislation. The aim behind the amendments seems to be that terrorists should not be able to profit from their actions. The Government agree with that aim, but the amendment is unnecessary. The terrorist activities with which the amendments deal will constitute criminal offences and will therefore be covered. A convicted terrorist may have a criminal lifestyle. That will obviously be true if he has been convicted of money laundering or drug trafficking, but also if he is convicted of being a member of a proscribed organisation and his membership lasted more than six months.

David Tredinnick (Conservative, Bosworth)

I hear what the Minister is saying, which is in essence that the clause already encompasses our objective. However, does he not believe that it would be better to include the word ''terrorist'' to make it easier for courts to interpret the Bill and avoid argument? Indeed, in a Province in which intimidation is a fact of life, it might be easier to specify it. Although the Minister suggests that it is all already specified in black and white, it would be better if it were emphasised in order to make interpretation easier for those involved in law enforcement.

Bob Ainsworth (Labour, Coventry North East)

I do not accept that. We must consider the Bill together with the Terrorism Act 2000 and the emergency legislation, which has drawn out similar, and in some cases mirrored, provisions, and is intended to take them through Parliament in a different time scale in order to cover the circumstances surrounding terrorism.

The hon. Member for Henley (Mr. Johnson), who is not with us at the moment, said that he feared that terrorism was not covered by clause 75. However, section 11 of the Terrorism Act 2000 makes it a criminal offence to belong or to profess to belong to a proscribed organisation. Some provisions in the Anti-Terrorism, Crime and Security Bill exactly mirror provisions in this Bill. Some Opposition Members have tried to change other provisions in that Bill so that they mirror this Bill—as, for instance, in the case of account-monitoring orders. The effect of that mirroring might be to lower the threshold necessary to trigger an account-monitoring order as it applies to a terrorist organisation. I do not believe that we should do that. I have not participated in the debate and heard the Opposition's reasoning for lowering that threshold as it applies to terrorism, so I do not understand what their justification could be.

David Wilshire (Conservative, Spelthorne)

The Minister said that he could not understand why it would be necessary to include terrorism, because existing criminal legislation and criminal definitions would be adequate. I draw his attention to an aspect of the threat assessment that I mentioned earlier relating to non-licensed and illegal gaming and jackpot machines. It states that in 1999–2000, Customs and Excise

''collected £2.5 million from betting and gaming activities in Northern Ireland. Fraud estimates indicate significant non-compliance and the trend is upwards.''

Thus far, I am sure that the Minister is right and that provision exists to deal with that. However, the next sentence should be considered, too:

''There are indications that some ventures may be 'legitimately' run—making action by law enforcement very difficult.''

That threat assessment is saying that some things that cannot be caught by criminal prosecutions are funding terrorism. That is the point that we are trying to make.

Bob Ainsworth (Labour, Coventry North East)

The hon. Gentleman is surely aware that the Terrorism Act 2000 contains forfeiture and restraint provisions for all moneys linked with terrorism, whether they are moneys required to fund terrorism or moneys derived from terrorism. It is difficult to imagine how someone could acquire money as a result of terrorism that is not acquired through, or as a result of, criminal activity. It is beyond my powers of reasoning to imagine how one could apply and not the other. Hon. Members should be aware that the Anti-Terrorism, Crime and Security Bill—parts of which the Opposition objected to and tried to water down—provides for the introduction of the availability of restraint, exactly as it is being introduced in this Bill, at the start of an investigation. I therefore do not believe that in the Bill, it is either necessary or sensible to duplicate powers in relation to terrorism—or in some cases, to provide powers that are not as extensive as those in other legislation—when other legislation covers the matter.

The hon. Member for Spelthorne referred to the taskforce in Northern Ireland and suggested that there had been only one prosecution, of a Belfast solicitor. My information is that that solicitor is the first solicitor in Northern Ireland to be accused of money laundering, but that other people have been accused of money laundering too, and solicitors in the rest of the United Kingdom and in Wales have also been prosecuted for money laundering. In the year September 1999 to October 2000, two people were convicted of money laundering offences in the Province.

Tom Harris (Labour, Glasgow Cathcart)

Does the Minister agree that Opposition statements supporting strengthening the Bill would carry a lot more weight had the Opposition supported the Financial Investigations (Northern Ireland) Order 2001, which came before the House earlier this year? Yet they abstained on it.

Bob Ainsworth (Labour, Coventry North East)

My hon. Friend is more familiar than I am with the detail of the Opposition's activities. I do not know the consequences of their abstention and did not follow the reasons given for it at the time.

The hon. Member for Spelthorne talked about the unique situation in Northern Ireland. He said that the issue of moneys derived from menaces concerned with kneecapping needed to be adequately covered. It will be covered. Such an act is a crime in itself. It will be covered under the Bill and under terrorism legislation. Any person who obtained money with menaces, such as threatening to kneecap someone, would be guilty of robbery, assault or a variation of those crimes, depending on the circumstances.

Nick Hawkins (Conservative, Surrey Heath)

I would accept what the Under-Secretary says if we were talking about kneecapping being carried out specifically for financial benefit. Clearly, that would be covered. However, in Northern Ireland, kneecapping is often carried out for other reasons.

Bob Ainsworth (Labour, Coventry North East)

We are talking not about criminal law, but the law concerning the proceeds of crime. If there are no proceeds, we cannot confiscate them. If there are proceeds, we certainly can confiscate them. The incidents to which the hon. Gentleman referred would be categorised as crime and would be covered by the Bill. Those incidents would also be acts of terrorism and would therefore be covered by provisions in the emergency legislation. I do not see the gap that the amendments seek to cover.

The hon. Member for Spelthorne talked about moneys that might not be held by the individual concerned but had been passed to an organisation. I want to return briefly to the issue that he has repeatedly raised about lifestyle criminals. It has nothing to do with image. I was amused by his portrayal of lifestyle criminals driving around in Range Rovers with gold rings on their hands, whereas terrorists try to look like everyone else to avoid being discovered and caught. If only the world were that simple. Lifestyle criminals masquerade under many different guises, as do Members of Parliament. Some hon. Members may wear funny ties each day of the week—so may terrorists. They may present themselves in different ways.

The hon. Gentleman knows—and the matter has already been adequately discussed—that the designation of a criminal lifestyle arises from the offences that have been committed. It is not reflected in the type of car that the individual drives, nor the jewellery or clothes that he wears.

David Wilshire (Conservative, Spelthorne)

I am perplexed by the Under-Secretary's answer. The example that I gave of criminal lifestyle was not mine, but was first introduced by the hon. Member for Glasgow, Pollok, although I stand to be corrected on that. Our argument was that a criminal lifestyle created an image that we were not sure about. The reply that we received was that a criminal lifestyle is self-evident, yet the Minister is now saying that there is no such thing as a distinct criminal lifestyle. Will he comment on that point? I do not want to reopen that debate, but is his answer not contradictory to the way in which we resolved the earlier issues? Is there a distinct lifestyle or is there not? Which is it?

Roger Gale (Conservative, North Thanet)

Order. I will allow the Under-Secretary to respond to that specific point. We shall not, however, reopen the debate on the definition of a criminal lifestyle.

Bob Ainsworth (Labour, Coventry North East)

The hon. Gentleman has already been told, and I will tell him again, that a criminal lifestyle has nothing to do with the image that is portrayed. He is apparently concerned about the image that he portrays and may find that aspect fascinating. The Bill designates those people who have committed a set of offences, or particular offences, as having a criminal lifestyle. He talked about when the money gained was passed to an organisation and sought assurances that that situation would be covered. It will be covered under the Bill because it would be a tainted gift. I appreciate that Conservative Members want to explore the issue. They want to be certain that terrorism is covered adequately both in the legislation that has already passed through the House and in provisions that are presently under consideration. We need to do that in the context of Northern Ireland and in a wider context—particularly in light of the events of 11 September.

I assure hon. Members that the Terrorism Act 2000, the emergency legislation that is currently passing through the House—and I appeal to hon. Members to co-operate with that—and the Proceeds of Crime Bill adequately cover all those circumstances. If the amendments provided further cover, I would be happy to consider them. However, they add nothing, so I ask that they be withdrawn.

Nick Hawkins (Conservative, Surrey Heath)

I am somewhat disappointed by the Minister's response, although I accept that he has tried to address the issue seriously.

It is helpful that a Minister has said that he does not think that there will be any gaps in the various provisions, when the Bill is enacted. With regard to the rule in Pepper v. Hart that statements made by Ministers while they are arguing the Government's case can be used in court, it might be helpful to a court, when it comes to look at the provisions—in whatever form they finally take—to read that the Minister said that there are not intended to be any loopholes through which people can slip. However, Conservative Committee members are still not entirely satisfied.

Paul Stinchcombe (Labour, Wellingborough)

If you are not entirely satisfied, which terrorist offences are you concerned about?

Roger Gale (Conservative, North Thanet)

Order. It is of no consequence whether I am satisfied.

Paul Stinchcombe (Labour, Wellingborough)

I apologise, Mr. Gale. Let me rephrase my question: if the hon. Gentleman is not entirely satisfied, which are the terrorist offences that he thinks might not fall within clause 75(2)?

Nick Hawkins (Conservative, Surrey Heath)

One of the points that I was going to raise, in responding to the Under-Secretary's reply to the debate, was that he said that, if people have been members of proscribed organisations for six months, they will be caught, but as the Bill is currently drafted, that is not the case with regard to people who have been members of proscribed organisations for less than six months. However, if the amendments—or provisions akin to them—were introduced, that gap would not exist. I also intervened on the Under-Secretary during the discussion about kneecapping. He said that that would be covered if there were financial consequences.

My hon. Friends the Members for Spelthorne, for Bosworth, for Henley and for Cities of London and Westminster (Mr. Field) have expressed the remaining concerns of Conservative Members. The Bill would be better understood by everyone who takes an interest in the very serious difficulties that continue to exist in Northern Ireland if it included phrases that specifically referred to terrorist and paramilitary activity.

The whole of part 4 deals with Northern Ireland Although, happily, there are far fewer murders there now, because of the peace process, we all know—and anyone who has ever received any kind of military briefing in recent months, from people serving in Northern Ireland, or from the security services, will know very well—that racketeering continues, and that the proceeds of criminal activity controlled by terrorist and paramilitary organisations continue to grow. I am disappointed that the Minister has not responded by saying, ''Well, we understand that the Opposition amendments contain several drafting mistakes, but we are prepared to consider the issue again.''

Bob Ainsworth (Labour, Coventry North East)

Has the hon. Gentleman forgotten that, when I wrote to Committee members on 27 November—I think that that was the date—I suggested that terrorist funding should be added to the list of offences that will indicate a criminal lifestyle?

Nick Hawkins (Conservative, Surrey Heath)

That is correct. I am not condemning everything that the Minister has done in this regard. I accept that that is a perfectly valid point. However, it will be difficult for those who examine our proceedings to understand why the Bill does not contain specific additional words that refer to terrorist and paramilitary organisations, as we have suggested.

I was surprised and disappointed that the Minister did not deal in detail with our points about removing issues of amnesties or rehabilitation of offenders legislation. I appreciate that we will not have much of a clause stand part debate because of the pressures of the guillotine, but he may refer to the matter briefly before we move on.

Bob Ainsworth (Labour, Coventry North East)

There is no amnesty in the Bill. As I recall, the only people who have proposed the inclusion of amnesties are the hon. Gentleman and his colleagues.

Nick Hawkins (Conservative, Surrey Heath)

The Minister may slightly misunderstand my point—not deliberately, I am sure. One amendment would mean that when the court examines the past criminal activities of a person who is before them, they should not take into account any application of rehabilitation of offenders legislation or amnesties granted by a Government of any party—I am not making a party political point.

I do not propose to press the amendments. Although the Minister has not said this, I hope that, in the light of what he has written to all members of the Committee about including terrorist matters in the list of offences, he will further consider the issues with his officials. I hope that more carefully drafted amendments will be tabled on Report or in another place to take account of the spirit of our amendments. With that earnest hope, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Roger Gale (Conservative, North Thanet)

Before we move on, during the previous debate the hon. Member for Henley referred by name to Mr. Martin McGuinness. I did not intervene because I was uncertain of whether a Member of the House of Commons who has not taken the Oath should be referred to by name or constituency. I have scoured ''Erskine May'' and I cannot find a current ruling. I am minded to suggest that, during this Committee, if a Member is an elected representative of the people, he or she should be referred to by constituency rather than by name. I may ask the Chairman of Ways and Means for a further ruling on the matter, and I shall advise the Committee if he has an alternative view.

David Wilshire (Conservative, Spelthorne)

On a point of order, Mr. Gale. I may be able to assist to you and the Committee. I almost ran foul of this point on the Floor of the House some years ago when I referred to the hon. Member for Belfast, West (Mr. Adams) as the dishonourable Member for West Belfast. The now Lord Walker was about to call me to order for using the phrase ''dishonourable Member'', when the Clerk advised him that a person who has not taken the Oath is not caught by the protection that the rest of us enjoy from unparliamentary language. That ruling may assist you when you do further research.

Roger Gale (Conservative, North Thanet)

With respect to the hon. Gentleman, that is not the point that is at issue, which is whether a person should be referred to by name or by constituency. It is my view—this is why I make the ruling—that if it is necessary to refer to either of the two hon. Gentlemen who are the elected representatives of the people of their constituencies but have not taken the Oath, they should be referred to by constituency. If the Chairman of Ways and Means advises me differently, I shall inform the Committee.

Nick Hawkins (Conservative, Surrey Heath)

I beg to move amendment No. 371, in page 94, line 7, leave out subsection (6).

In relation to the ruling that you just made, Mr. Gale, I did not refer to the hon. Member for Mid-Ulster (Mr. McGuinness) when I intervened on my hon. Friend the Member for Henley after he had referred to the hon. Gentleman, because of my uncertainty about that point. I am grateful for your ruling, because in my intervention I simply referred to ''people''. That was why I used that term.

The amendment raises a slightly different issue from the previous group of amendments, but a related one. We tabled it because of our concerns about the way in which terrorists and paramilitary organisations operate in Northern Ireland. Sadly, the intimidation of ordinary, law-abiding people is a feature of life in places where terrorists and paramilitary organisations hold sway. Under subsection (6), the court is instructed to

''treat the duty in subsection (5) as a power if it believes that any victim of the conduct has at any time started or intends to start proceedings against the defendant in respect of loss, injury or damage sustained in connection with the conduct.''

Opposition Members think that subsection (5) should remain a duty, not a power, because we are concerned that a victim of such conduct may want to

''start proceedings against the defendant in respect of loss, injury or damage''

but may be intimidated into not doing so. It would be unwise to constrain the court's opportunities to consider the issue. We know from practice that, sadly, such intimidation regularly occurs. The court's duties should not be circumscribed in any way. Subsection (5) should remain unchanged, so that whenever

''the defendant has benefited from the conduct referred to it must—

(a) decide the recoverable amount, and

(b) make an order (a confiscation order) requiring him to pay that amount.''

We are talking about people who have benefited substantially from the proceeds of crime. We want to toughen up the Bill. The court must always have the unavoidable duty to make an order requiring a defendant to pay the recoverable amount.

In Northern Ireland, specific conditions prevail that, happily, do not prevail in any other part of the UK. Because of those special circumstances, the powers of the courts should not be circumscribed. There are many precedents for special provisions for courts in Northern Ireland: for example, there are arrangements for judges to sit without juries. One reason for that is that jurors may be subject to intimidation. We want to ensure that confiscation orders are made against money launderers, drug traffickers, or anyone who could be dealt with under the Bill. We do not want victims of their conduct to be subject to intimidation.

A victim may start proceedings but be intimidated and prevented from pursuing them. That should not allow the Mr. Big to get away with a lower recoverable amount. I can well envisage a money launderer or a drug trafficker who has profited from his crime being able to impose improper pressure through associates on a victim not to pursue proceedings that have already started. It could then be argued that, because the proceedings had already started, the recoverable amount should be reduced.

Given the special circumstances that prevail in Northern Ireland, it would be safer if subsection (6) were removed. We are probing the Government. I am not suggesting that our aim will necessarily be achieved by deletion of subsection (6)—the Under-Secretary may say that there may be a better way of doing that—but I hope that he will understand our sincerity and the thinking behind the amendment. I am sure that Labour Members accept that we are conscious of the realities of life in the Province. If he can say either now or at a later stage that the Government accept that there is a problem and that there is another way in which to solve it, we will listen carefully to him. If he cannot assist us today, I hope that he can do so on Report or in another place.

Mark Field (Conservative, Cities of London and Westminster)

I agree with my hon. Friend's comments. The proposal is a probing amendment and, in one sense, it may seem a little perverse, given that we endorsed the idea that the court has much discretion earlier in the Bill, but are now keen to rein back such discretion and ensure that the court is under a duty.

If pressure is brought to bear on an individual to commence proceedings, in order to fall under the subsection, a process of abuse may begin. I hope that the Under-Secretary can assuage the fears of my hon. Friend the Member for Surrey Heath and myself in that regard. Clearly, if the court is to have strong discretion that depends on the actions of a particular victim, we could be in a dangerous position. Has he foreseen such problems? Why does he believe that the court should have such discretion rather than having a duty to behave in a particular way as envisaged in the clause?

David Wilshire (Conservative, Spelthorne)

My hon. Friend the Member for Surrey Heath explained far better than I possibly could the implications—

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

Hear, hear.

David Wilshire (Conservative, Spelthorne)

Never mind the quality, feel the width. My hon. Friend explained the implications of allowing such discretion. He is right. Such a provision would open up a loophole. I hope that it does not go unnoticed that Conservative Members are arguing for the Bill to be toughened up. Intimidation of witnesses and extortion are inextricably linked. Extortion is a particular problem in Northern Ireland. It is a serious issue. My hon. Friend did the Committee a favour by saying that the amendment would toughen up on both extortion and intimidation.

I return to the threat assessment of the task force in Northern Ireland. It made it clear in its report that extortion was ''a very serious issue'', and not only because of the sums involved. I shall not pre-empt that debate, because the money involved in extortion is dealt with in a later amendment. The report states:

''Extortion is a key factor in perpetuating paramilitary control of vulnerable communities. In the same way as paramilitary beatings, the extortionists create a climate of fear and insecurity which threatens the rule of law.''

We are in serious territory. I say to those who look back at my previous comments on such matters that it is worth noting that the report makes it clear that extortion and intimidation of the sort to which my hon. Friend referred is almost exclusively the domain of the loyalist paramilitaries rather than the republican ones. On this occasion it is not as easy to be even-handed in condemnation of everybody.

It is important to ask whether we are right to pursue the amendment, in the light of what experience shows. The report makes it clear that incidents of extortion and intimidation are getting worse. It says:

''Of 86 complaints made to police in the period 1995–1998 only one quarter were successfully prosecuted. Almost half the cases originally reported to police were withdrawn as a result of fear . . . before any investigation could be carried out.''

That is exactly the point made by my hon. Friend: the extortionist moves on to the intimidation of witnesses. To allow any sort of discretion would provide a loophole that such people would use. In case the Committee is tempted to think that the Opposition are kicking up a fuss about nothing, the section of the report on extortion and intimidation concludes:

''There is a real danger of organised crime developing more sophisticated extortion rackets. Already vulnerable communities are at greatest risk.''

That is why the amendment, or something like it, is important. I would be grateful if the Minister would at least accept that we have a point that needs to be explored. He may wish to come back to the Committee later with observations on details and improved wording.

Bob Ainsworth (Labour, Coventry North East)

The amendment would mean that the court would have to make a confiscation order for the full amount of the defendant's benefit, even when a victim of criminal conduct—not necessarily terrorist-related—had started or intended to start civil proceedings against the criminal for damages. The clause mirrors the provisions of clause 6. If the amendment were accepted, a victim might not be able to recover damages against the criminal. That is because, once the property had been confiscated and the money paid into the Consolidated Fund, the criminal could be left with no funds out of which to pay any damages. That would not protect the rights of the victim, which the Government have sought, in several respects, to do.

Nick Hawkins (Conservative, Surrey Heath)

I think that the Government could get round that problem—I know that the Minister is going to address the basis of our amendment—if they introduced an opportunity for the victim subsequently to take proceedings against the Consolidated Fund. That would protect the victim from intimidation without leaving the loophole that we are talking about. Of course, even if the money has gone to the Consolidated Fund, a victim might still be able to take proceedings under the criminal injuries compensation scheme.

Bob Ainsworth (Labour, Coventry North East)

Yes, people will certainly be able to do that under the criminal injuries compensation scheme. I can only address the amendments that have been tabled. I have found them rather difficult, conceptually, to understand. I understand what the hon. Gentleman is saying about the different circumstances in Northern Ireland in comparison with the rest of the United Kingdom. However, in the light of previous amendments tabled by Opposition Members—whereby they were almost expecting us to offer a service to any victim or compensation claimant, at the taxpayer's expense, in almost any circumstances—I found it difficult to understand what he was trying to achieve. We agreed that we would reflect on whether movement was necessary. However, the amendment would prevent not only victims of terrorist-related crime but victims of any crime in Northern Ireland from being able to be given consideration. It would remove the discretion of the court to take into the account the circumstances that apply.

Nick Hawkins (Conservative, Surrey Heath)

Perhaps I did not make myself clear. We want to protect victims but also to ensure that the criminal racketeers—the Mr. Bigs—in Northern Ireland are not able to intimidate victims and exploit a loophole. We foresee that a victim may wish to start proceedings. At the moment, the courts' powers are limited the minute such proceedings are started. The defendant may have the opportunity to cut down the order made against him because the victim may make the claim. The problem is that if a victim starts a claim, the defendant or his associates may intimidate him so that he does not pursue it. Therefore, the defendant would get away without the full majesty of the law bearing down on him, and the victim would not get anything.

Bob Ainsworth (Labour, Coventry North East)

I understand that. However, the hon. Gentleman's solution is to deprive the court of the discretion to examine circumstances and estimate whether there is a real problem. The exemption in subsection (6) is present to allow the court the discretion to turn a duty into a power to examine whether it should continue with the order when circumstances apply. The court will be far nearer to individual circumstances and will be able to consider all those issues. It will not be fettered in any way. If we accepted the amendment, we would deprive the court of that ability.

I hope that the hon. Gentleman understands that the amendment would mean that the court would be unable to consider circumstances when a claim by a victim is pending or in process and would have the duty to continue to confiscate possibly all the criminal's property.

I understand the hon. Gentleman's worries. They are very real in relation to Northern Ireland. We discussed the matter outside the Committee in order to establish the position. I am satisfied that the best way of dealing with the matter is to allow the courts the power to continue with a confiscation order when that is appropriate. The court will be able to take account of the circumstances that the hon. Gentleman envisages, and I resist the amendment, which would deprive the court of that ability.

Nick Hawkins (Conservative, Surrey Heath)

Obviously, I understand that the Minister is addressing the point seriously. I had hoped that he might go further when he referred to the indications that he gave during an early sitting when he said that the Government will reconsider how to help victims further. I hope that he will then think about this issue, although he has not said that he will. I see him nodding. If he is prepared to say that he will think again about this matter, which he said that he considered seriously with his advisers, and the genuine problem that he recognises that we have addressed, I will be very pleased.

I said that Conservative Members did not claim to have the perfect solution. I know the potential downside risks to which the Minister referred. However, we hope that there is a better way to ensure that the court has the duty to bear down heavily on defendants and not to give them a loophole through which to climb, while at the same time protecting victims.

Bob Ainsworth (Labour, Coventry North East)

As I said, we are examining matters that the Opposition raised about compensation claims. There is no reason of principle why we should not cast our eyes over this matter when we do that. That is no hardship, so I give the hon. Gentleman that assurance. I believe that the best way in which to deal with the matter is by giving discretion to the court, but we will consider his proposal.

Nick Hawkins (Conservative, Surrey Heath)

I am very grateful to the Under-Secretary. His response was enormously helpful and makes my task easier. I said that we were probing such matters. He has now said that he will reconsider the proposal, but starting from the point that that the Government are right. Perhaps some of our arguments will cause them to think again and to table a further amendment on Report. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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 amendment 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 158 ordered to stand part of the Bill.

Clauses 159 to 162 ordered to stand part of the Bill.

Clause 163 - Assumptions to be made in case of criminal lifestyle

David Wilshire (Conservative, Spelthorne)

I shall be brief. The clause refers repeatedly to a criminal lifestyle. I assure you, Mr. Gale, that I do not want repeat our arguments about that, but the provision refers to a collection of requirements whereby account must be taken of that lifestyle. I referred earlier to the evidence in Northern Ireland whereby some activities are not criminal but amount to financial aid to terrorism. The Under-Secretary may wish to add special provisions concerning matters that do not arise from a criminal lifestyle or are not criminal activities. According to the taskforce in Northern Ireland, which has carried out much research on behalf of the Government on such matters, situations are developing in which activity that cannot be prosecuted and for which those persons engaged in it cannot be seen to be involved in a criminal lifestyle because, by definition, it is not technically criminal, is terrorist activity and gives rise to significant sums of money.

Will the Under-Secretary reflect on that on Report? Will he make changes that would add to the clause extra provisions for activity not only in Northern Ireland but elsewhere in the United Kingdom? The Northern Ireland position gives rise to a special circumstance that should apply to the whole United Kingdom.

Bob Ainsworth (Labour, Coventry North East)

I say to the image-conscious hon. Gentleman that he has probably opened up a split on the Government side. He will have heard my hon. Friend the Minister of State groaning when he rose to speak earlier, whereas I have no objection to his interventions. I find them very useful. I encourage him to continue to make them. He has managed to drive a wedge between me and my hon. Friend.

Obviously, the hon. Gentleman is worried about such issues and is trying to ensure that they are covered. Under the clause, we are discussing assumptions, as we were when dealing with clause 11. I remind him of what I said to the hon. Member for Surrey Heath. When I wrote to the Committee, I said that terrorist funding was one of the issues that I was minded to add to the list of offences that triggered the assumption of a criminal lifestyle. I should have thought that that would have assured him that his point is covered under the clause. I am sure that he is aware that, under the Terrorism Act 2000, aid to terrorism is criminal. The Act makes the funding and assisting of terrorism with money or other property a criminal offence. I am convinced that the point is covered, and I am not sure where his concerns lie.

David Wilshire (Conservative, Spelthorne)

Let me see whether I can persuade the Under-Secretary further; I hope that I can. Not only does the circumstance arise in which certain things are not classed as criminal activity, but in Northern Ireland ''donations'' are ''encouraged''. It is not necessarily criminal to hand over money, and the causes to which the donations are made are not necessarily prosecutable.

One of the problems with Northern Ireland is that donations are made to organisations that run alongside terrorism and take the money slightly away from it. The donations are therefore not caught by the criminal law, although it is patently obvious that the purpose of the donation may be to support the families of terrorists, for example. The donations would not be caught under the provisions of the Bill. That is why I press my point.

Bob Ainsworth (Labour, Coventry North East)

The Terrorism Act 2000 gives us the ability to proscribe terrorist organisations. Funding a proscribed organisation, whether by legal or other means, is a criminal offence. I do not know what the hon. Gentleman is asking us to consider. Does he suggest that it should be a criminal offence to aid in any way organisations that are not proscribed as terrorist organisations? We would have considerable problems with that.

We must first identify terrorist organisations and proscribe them under the 2000 Act. It will then be a criminal offence to give any aid to them, by either lawful or illegal means. That is covered by the Bill, the emergency legislation and legislation enacted under various Governments. I do not think that the hon. Gentleman is making a point to which I can respond, and I do not think that I can go away and consider extending the powers in the clause to cover it.

David Wilshire (Conservative, Spelthorne)

I can only refer the Under-Secretary to his own taskforce report, which states:

''In practice there is little difference between those who collect money for so-called 'legitimate' causes and demands made with menaces.''

The taskforce identifies those who obtain money for so-called ''legitimate'' purposes. Proscribing a terrorist organisation under a different Act does not help us to catch organisations that, although not part of the terrorist organisation, exist exclusively to support those on the fringes. I am simply referring to the Under-Secretary's report.

There is plenty of evidence of ''legitimate'' money going to ''legitimate'' organisations whose real motivation is to make terrorism easier. The Under-Secretary needs to ask himself whether existing legislation catches such organisations, because the report says that it does not.

Bob Ainsworth (Labour, Coventry North East)

The hon. Gentleman is going far wider than the provisions in the Bill. I think that he is inviting me to suggest that legitimate money going to legitimate organisations should in some way be proscribed. I have repeatedly told him that it is a criminal offence to intend to use, no matter how circuitously, legitimate money in order to fund terrorism. It does not matter how legitimate the money is. That point is covered in the Terrorism Act 2000 and other legislation, and the money would be confiscatable under the Bill. I do not know what more I can say on the matter.

David Wilshire (Conservative, Spelthorne)

I am most grateful to the Under-Secretary. I draw his attention to a case in 1997 in which two people convicted on blackmail charges asked the court to draw a distinction between those who ask for donations for legitimate organisations and those who make threats for money. That argument is being used, and it is in danger of being successful. The Bill gives us the opportunity to ensure that that argument, which was used in 1997, can never be used again.

Bob Ainsworth (Labour, Coventry North East)

I have nothing to add.

Question put and agreed to.

Clause 163 ordered to stand part of the Bill.

Clause 164 - Time for payment

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

I beg to move amendment No. 119, in page 97, line 3, at end add—

'(6) An order under subsection (4)—

(a) may be made after the end of the specified perid, 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.'

Roger Gale (Conservative, North Thanet)

With this it will be convenient to take Government amendment No. 120.

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

My hon. Friend the Under-Secretary is being far too kind to the hon. Member for Spelthorne, and my hon. Friend the Member for Stirling (Mrs. McGuire) and I think that he needs a rest.

David Wilshire (Conservative, Spelthorne)

I need a rest?

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

No, the Under-Secretary.

Amendment No. 119 is a technical amendment, relating to applications for more time to pay. It replicates amendment No. 36 to clause 12, which the Committee has already agreed to. Amendment No. 119 removes doubt as to the procedures involved in handling applications for further time to pay. That will be of assistance to the courts.

Amendment No. 120 is consequential on amendment No. 119 and replicates amendment No. 37 to clause 13. It will ensure that defendants are not unfairly subjected to the payment of interest.

Nick Hawkins (Conservative, Surrey Heath)

I do not need to offer a lengthy response to the Minister's comments, as the amendments merely repeat Government amendments that have been made to equivalent earlier clauses.

However, I seek clarification with regard to amendment No. 120. That is a pro-defendant amendment: as the Minister said, it ensures that the defendant is not unfairly prejudiced against. Is he satisfied that we ought to be so generous to defendants in Northern Ireland, given the special circumstances that exist there?

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

If the defendant fails to pay the confiscation order in full before time to pay expires, the order automatically accrues interest at a fixed rate. That rate is currently 8 per cent., although it varies. The amendment provides that, where the defendant applies for an extension of time to pay before a previous period expires, no interest accrues on the order, as long as the application is outstanding, or it is less than 12 months since the order was made, after which time no extension can be given in any case. That should apply to people in Northern Ireland in equal measure as it applies to people in Wales, Scotland and—even—England.

Amendment agreed to.

Clause 164, as amended, ordered to stand part of the Bill.

Clause 165 - Interest on unpaid sums

Clause 171 - Provision of information by defendant

Nick Hawkins (Conservative, Surrey Heath)

The clause mirrors the provisions of clause 19, which refers to England and Wales. It addresses the provision of information by a defendant, and once again there might be special factors with regard to defendants in Northern Ireland.

I want Ministers and their advisers to consider the situation of a defendant who is not the Mr. Big—so to speak—but is a middle-ranking defendant involved in money laundering, drug trafficking or racketeering in Northern Ireland. The provisions of the enacted Bill will be binding on anyone against whom proceedings are being taken. In particular, subsection (4) includes the provisions relating to the court's drawing inferences. In the courts in England and Wales, there may be little difficulty about drawing adverse inferences from a defendant's failure to respond. However, in the case of Northern Ireland, one can envisage a defendant who has quite properly been brought before the court being intimidated by people higher up the criminal organisation.

I wonder whether the Ministers and their advisers have thought about the way in which courts draw inferences in an atmosphere in which intimidation and the threat of violence are constantly present—which, sadly, is true of racketeering organisations in Northern Ireland controlled by terrorists or paramilitaries. Although I did not table specific amendments to match those debated previously under clause 19, which were of a different nature, I wanted at least to alert the Ministers to the possibility that it might not be appropriate for inferences to be drawn in the same way in Northern Ireland as in England and Wales under clause 19. In relation to provision of information by defendants, special circumstances arise from conditions in Northern Ireland. Despite the ostensible peace process, to which I referred when we debated an earlier group of amendments, every official briefing stresses that, sadly, the racketeering, intimidation and threats continue.

Steve McCabe (Labour, Birmingham, Hall Green)

Assuming that the hon. Gentleman is sincere in his intentions, which I have no reason to doubt, is he anxious that by pursuing this he may provide a get-out or escape clause to every lower-order terrorist and criminal in Northern Ireland who seeks to use it as a defence?

Nick Hawkins (Conservative, Surrey Heath)

The hon. Gentleman has touched on the reason why my hon. Friends and I did not table a specific amendment. We did not want to provide a get-out, and we were not sure that there was an easy way of doing this. As he is aware, we do not have the drafting resources that are available to Ministers. However, we wanted to alert the Government to our concerns, which is why I am doing that on clause stand part. Whenever I try to think about how one might amend the clause to protect the middle-ranking person who might properly be before the court, who might be a criminal, but who might be subject to threats from people higher up the terrorist-controlled racketeering organisation, it occurs to me that, whatever amendment one tables, one might open a loophole.

The hon. Gentleman has therefore identified my concern precisely. We could not frame a suitable amendment, but we wanted to alert the Government to the risk, and ask whether, with their much greater drafting resources, they had thought about the matter. If they had not, we wanted to ask whether they would do so, and if they had, we wanted to ask what their response would be.

David Wilshire (Conservative, Spelthorne)

The clause raises some serious issues on which the Government should reflect. I realise that there is a need to keep the legislation in line with the rest of the country. However, there are circumstances in Northern Ireland that leave me nervous about the way in which the clause is worded. I cannot understand how the principle of keeping the legislation the same throughout the United Kingdom is undermined by reflecting on the wording used in particular parts of the country. In Northern Ireland, an invitation for the court to draw such inferences as it sees fit is rather worrying. I do not say that in a sense of wanting to provide loopholes or to be soft on anybody. We must understand the nature of Northern Ireland's society and the pressures that are on people there, which are not necessarily on people who are charged with such crimes in other parts of the country. It is much more likely that a person who refuses to answer a question under those circumstances will be absolutely terrified of the implications of answering it. The history of violence in the terrorist and criminal fraternity in Northern Ireland is of a different order from that which applies in the rest of the country.

I worry that the court would be invited to assume that a person was guilty if they refused to answer questions. A person might not be guilty but, for various reasons, be afraid of implicating someone else. Terror would be struck into a person by the thought that if he answers the question and says: ''It wasn't me, guv, it was so-and-so,'' he would know that he, his family and his children would be equally at risk. Such pressure is different in Northern Ireland.

We must be very careful in inviting a court to draw whatever inferences it deems fit because answers could be given for reasons other than telling the truth. People may be persuaded to admit to something because they are covered by an amnesty. That is a danger of giving people early release. People may admit to past crimes that are covered by their release from prison. Such admissions may not necessarily be the truth but would provide the courts with information that the person may wish to give for reasons other than establishing the truth.

A feature of terrorist organisations is not that one side tries to stitch up the other, but that the various sub-groups within any paramilitary organisation will try to stitch up one another. A court that asks for information when enforcing the Bill will open up an opportunity for intra-organisation stitching up of people whom others wish to put away for a long time. Will the Minister reflect on my worry about whether the wording is as tight as it could be for the special circumstances that obtain in Northern Ireland?

Circumstances in Northern Ireland mean that we should consider whether the court is entitled to accept allegations on face value. If a person makes allegations, the court may proceed along those lines. That is worrying, because it is an invitation to encourage people to say whatever they like. There will be an inclination to believe it, because someone has said it. For reasons that I outlined about drawing inferences, it is dangerous for a court to accept allegations when the motivation for those has nothing to do with establishing rights and wrongs or obtaining justice, and everything to do with a carve-up among paramilitary organisations. That is a dangerous road to go down.

I hope that the Minister will reflect on my points and those of my hon. Friend the Member for Surrey Heath. We want not to open a loophole but to ensure that the situation in the courts reflects the complexities and variations of the way in which the criminal and terrorist fraternities work in the Province—or anywhere else.

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

There may be a misunderstanding about the purpose of the clause. As the hon. Member for Surrey Heath said, it replicates what clause 19 does for England and Wales. The power that the clause gives to the court is important and flexible. It may be used, for example, to require the defendant to provide further information about a point in the prosecutor's statement. Alternatively, the court may prefer to take a broader approach and order the defendant to make full disclosure of all his financial affairs before the prosecutor's statement has been tendered. The court has full discretion in that matter.

I will address the arguments made by the two Conservative Members, although they are not relevant to the clause. The suggestion that things are different in Northern Ireland is rather strange. I do not know the names of the main towns in Surrey Heath and Spelthorne, but if they are anything like Glasgow or Paisley, the intimidation by drug dealers in those towns is just as great as the intimidation in Northern Ireland by terrorists. The level of intimidation and pressure that can be imposed on people is astonishing. The arguments made by the hon. Gentlemen did not demonstrate that the type of pressure that is applied to people in Northern Ireland is different from that which is applied to people on the mainland.

Mark Field (Conservative, Cities of London and Westminster)

Will the Minister give way?

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

I will not give way now. I want to explain that the information required by the defendant is concerned with his financial assets or property. That is linked to identifying his benefits, from either general or particular criminal conduct. That is what we are talking about. The inferences drawn are in respect of whether the defendant's property was legitimately obtained. There is an application of the assumption in relation to whether his statements in the trial were connected with intimidation. That is an entirely different matter. It is not covered by the clause and is not relevant to it. There is some misunderstanding as to the purpose of the clause.

Mark Field (Conservative, Cities of London and Westminster)

I want to make a minor point. The Minister said that the regime of the drug-taking and drug-dealing fraternities in parts of Glasgow and Paisley—and perhaps among those in Camberley and Staines—may be somewhat tougher than many people realised. The point made earlier by both my hon. Friends was that inferences in Northern Ireland might have a different effect to the inferences being used by the court on mainland Great Britain. That was their concern.

I took on board the Minister's comments about the nature of the pressure that can often be applied to defendants. My hon. Friend the Member for Surrey Heath gave a good example when he said that the defendant may be the middle-ranking man rather than someone more senior. Defendants may be put under pressure in all parts of the United Kingdom. However, the issue was raised about inferences that were drawn specifically about Northern Ireland. That was what we had in mind when we raised our concerns.

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

I dealt with the points raised by the hon. Gentlemen.

Incidentally, not only defendants are put under pressure. My hon. Friend the Member for Paisley, North (Mrs. Adams) and her family were intimidated by drug dealers because she was willing to challenge them. There is that type of strong pressure. I answered those points because they were raised, not because they are relevant to the clause.

Steve McCabe (Labour, Birmingham, Hall Green)

The hon. Member for Spelthorne said that an offender may not disclose information about benefits from crime, because he fears that it will indirectly identify a larger element in the terrorist structure. Would that situation be covered by subsection (4) where it refers to ''reasonable excuse''? If a defendant could demonstrate that he was in fear of his life, would that constitute a ''reasonable excuse'' for withholding information?

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

That is an interesting question. It would not be a reasonable excuse for withholding the information that we are dealing with. That information concerns the financial assets, or the property, of the defendant; in other words, it is linked to the identification of the criminal's benefit from either his general or his particular criminal conduct.

Nick Hawkins (Conservative, Surrey Heath)

I am glad that the hon. Member for Birmingham, Hall Green (Mr. McCabe) asked that question. The answer is that, with regard to the scenario that I and my hon. Friends the Member for Cities of London and Westminster and for Spelthorne have described, it is unlikely that anyone would say to a court: ''I am not prepared to give this information, because I am in fear of my life,'' because they would not want to implicate people who are higher up in the racketeering organisation. Does the Minister agree?

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

I am afraid that I have fallen into the same trap as my hon. Friend the Under-Secretary, by being too generous to Conservative Members.

Courts throughout the United Kingdom are used to operating under the circumstances that have been described, and the courts in Northern Ireland are used to operating in Northern Ireland—they understand the pressures that are brought to bear there. However, that matter is not particularly relevant to the purpose of the clause.

Question put and agreed to.

Clause 171 ordered to stand part of the Bill.

Clause 172 ordered to stand part of the Bill.

Clause 173 - No order made: reconsideration of benefit

David Wilshire (Conservative, Spelthorne)

I wish to refer to a general issue. I suspect that it relates to many clauses—although I have not tried to identify all of them. I will focus on subsection (7), but I wish the Minister to respond to the general issue.

Subsection (7) applies if the court has already sentenced the defendant for the offence, and it explains what the court can do in those circumstances. However, on this occasion, I am not worried about what the court can do. My concern is that someone who has been involved in a serious crime might be caught. Their offence might be money laundering, which would not be relevant to what I have to say, but in Northern Ireland the offence might be extortion, and offences such as GBH could be involved. A range of violent activities are conducted for terrorist purposes. As I and other Committee members have explained, extortion is used by paramilitary organisations to maintain control of their territories. Large sums can be involved, and people can be heavily involved in intimidation and violence.

In an earlier debate, an answer was not given to the question about what would happen if a pardon were involved. If we had had a stand part debate, I would have had the opportunity to refer to the case that was used as a debating point. Ministers have not answered the question. Perhaps they will answer it now.

My concern is that, if someone who has been sentenced for an offence and has entered a prison in Northern Ireland is subsequently pardoned and released, that offence and that conviction no longer stand, as they have been given an amnesty. What will happen if the court is invited to do various things after conviction, when the conviction has been quashed, or it has been set aside for political reasons? Some nasty problems might be lurking in that regard in a range of clauses. Have the Government thought about that, and if they have not, should they do so? If they do, will they respond—either now or later—to the question about people who are granted amnesties and pardons? That is highly likely to happen in Northern Ireland; indeed, it has happened—several hundred people who had been convicted of horrendous crimes have been released from prison, and they would no longer be covered by the provisions.

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

The Government have considered that point, but I do not understand how it relates to clause 173 and reconsideration of benefit. As I understand it, there is no system of wide-scale pardons in Northern Ireland—

David Wilshire (Conservative, Spelthorne)

Hundreds of them.

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

The convictions with which the Northern Ireland (Sentences) Act 1998 deals still stand as convictions.

Question put and agreed to.

Clause 173 ordered to stand part of the Bill.

Clauses 174 to 184 ordered to stand part of the Bill.

Clause 185 - Court's powers on appeal

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

I beg to move amendment No. 121, in page 112, line 22, leave out subsection (11).

Roger Gale (Conservative, North Thanet)

With this it will be convenient to take Government amendment No. 128.

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

I need not delay the Committee long on amendment No. 121. It replicates amendment No. 38, which has already been made to clause 33. When we reconsidered the clause following the Bill's introduction, it occurred to us that clause 185(11) is unnecessary, because its effect is already included in clause 203. If the director is responsible for enforcing the confiscation order, the Crown court must make an order permitting the director to appoint a receiver, regardless of whether the Court of Appeal originally made the confiscation order.

Amendment No. 128 is a technical amendment that makes the same change as amendment No. 45 did to clause 52. As the Court of Appeal does not need to direct the Crown court to proceed under clause 203, subsection (2) is not appropriate. In short, amendment No. 128 removes the reference to the Court of Appeal directing the Crown court. However, the effect of proposed new subsection (2) will continue to be that, if the confiscation order has already been satisfied, the Crown court is not obliged to make an order for the appointment of a director's receiver.

Nick Hawkins (Conservative, Surrey Heath)

I need not detain the Committee for any length of time on the matter. As the Minister explained, the amendments replicate amendments that the Government have already introduced in respect of the equivalent clauses in the provisions for England and Wales—clauses 33 and 52—so we have already made similar amendments.

My only question concerns whether there are different, additional provisions that relate specifically to cases that go to the Court of Appeal from the Crown court in Northern Ireland. I am sure that the Minister will say that he and his officials have considered the matter and that there are absolutely no changes. However, I am aware that sometimes, perhaps partly because Crown courts in Northern Ireland usually sit without juries, there are some different provisions relating to how the Court of Appeal considers appeals from Northern Ireland courts. Will he confirm whether there is a difference?

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

I can confirm that the answer is no.

Amendment agreed to.

Clause 185, as amended, ordered to stand part of the Bill.

Clauses 186 and 187 ordered to stand part of the Bill.

Clause 188 - Enforcement as fines etc

Nick Hawkins (Conservative, Surrey Heath)

I want to explore the clause in a brief stand part debate. When reading the Bill, and continually referring backwards and forwards between the England and Wales provisions and the Northern Ireland provisions, I noticed some major differences in relation to the clause. Unlike most other clauses in this part of the Bill, there is a difference between clause 188 and clauses 36 and 37. I assume that that is because of some different arrangements under the Criminal Justice Act (Northern Ireland) 1945 and the functions of the court as to fines and subsection (3), which refers to article 35 of the Criminal Justice (Northern Ireland) Order 1998 under which parents and guardians pay the fines instead of children. It struck me as odd, in relation to money laundering, drug trafficking and criminal racketeering, to see references under subsection (3) to situations when a parent or guardian pays a fine instead of a child. That provision is incongruous, given the offences that it covers. Surely, situations will not arise when parents or guardians pay fines instead of children in respect of money laundering and criminal racketeering.

I will be grateful if the Under-Secretary will explain to the Committee why the clause is so different from clauses 36 and 37. It would be helpful for the Committee to know the ways in which the fines regime differs and why parents and guardians should fall into such a category.

Bob Ainsworth (Labour, Coventry North East)

I sincerely hope that I shall be able to do as the hon. Gentleman asks.

The clause provides that confiscation orders, as at present, will continue to be enforced as Crown court fines. Subsection (2) requires the Crown court, as in England and Wales, to set a term of imprisonment in default of payment when it makes a confiscation order. The maximum default term that may be imposed is determined by the size of the confiscation order. Such matters are prescribed in statute. There is no difference in the maximum default term applicable between the various United Kingdom jurisdictions. Accordingly, in each of the various United Kingdom jurisdictions, a confiscation order will be treated in the same way as a fine in the relevant jurisdiction.

One of the main differences between England and Wales and Northern Ireland is that Crown court fines in Northern Ireland are not enforced through the magistrates court. That results in some differences between the two jurisdictions in the powers of enforcement available. The main difference is that, when default occurs, no further assessment of the defendant's means to pay is held by the Northern Ireland court, as the means assessment will have to be made when the sentence is first imposed.

The main burden of enforcing such orders will continue to fall on the main prosecuting authority in Northern Ireland, the Office of the Director of Public Prosecutions. However, when the director is appointed as the enforcement authority, the responsibility will fall on the Assets Recovery Agency. The Crown court will continue to have the power to allow payment by instalments, but when the defendant defaults on one instalment, he will be treated as having defaulted on all outstanding instalments. As in England and Wales, subsection (3) ensures that parents and guardians cannot be required to pay an amount due under a confiscation order made against a young person. I hope that the hon. Gentleman is reassured that the problem to which he referred will not apply to confiscation orders.

Nick Hawkins (Conservative, Surrey Heath)

I am still slightly puzzled. Under what circumstances does the Under-Secretary anticipate that, under the Bill, the order would apply to a child or young person? That does not seem to be the target of the Bill in any way, shape or form. I am still puzzled why the Government need, whether in Northern Ireland or England and Wales, the provisions in subsection (3).

Bob Ainsworth (Labour, Coventry North East)

The hon. Gentleman is absolutely right. Such a situation will not arise in the overwhelming majority of circumstances. However—

It being One o'clock, The Chairman proceeded, pursuant to Sessional Order D [30 October] and the Order of the Committee [13 November] to put forthwith the Question already proposed from the Chair.

Question agreed to.

Clause 188 ordered to stand part of the Bill.

The Chairman then proceeded to put forthwith the Questions necessary to dispose of the business to be concluded at that time.

Clauses 189 to 199 ordered to stand part of the Bill.

Clause 200 - Powers

Clause 202 - Powers

Clause 203 - Appointment

Clause 204 - Powers

Clause 215 - Management receivers: discharge

Clause 235 - Property: general provisions

Standing Committee B

Proceeds of Crime Bill

John McWilliam (Labour, Blaydon)

Before we come to amendment No. 365, I ask the indulgence of hon. Members. As they can hear, I am not my usual cheerful self, and I apologise in advance if I am less kind and considerate than I normally am.

David Wilshire (Conservative, Spelthorne)

On a point of order, Mr. McWilliam. You ask us to treat you kindly, so I shall ask you whether I may take my jacket off before I do so.

John McWilliam (Labour, Blaydon)

Gentlemen may remove their jackets if they wish. Ladies do not have to ask.Clause 245 General purpose of this Part

Clause 245 - General purpose of this Part

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 365, in page 145, line 8, after 'property', insert

'to the value at least £10,000'.

We now come to a completely new part of the Bill, which contains some of its most important and novel provisions—those for civil recovery of the proceeds of unlawful conduct. We shall have to consider many issues on part 5. The Opposition support the Government in introducing the principle of civil recovery, which will allow the enforcement agency to bring proceedings to recover the proceeds of unlawful conduct. In many ways, ironically enough, I am more comfortable with some of the concepts underlying civil recovery than with, for example, the assumptions that underlie some of the confiscatory regime.

Civil recovery allows for a procedure that is fairly well tried and tested. I hope that the courts, with their long experience of civil litigation, will not have too much trouble in applying rules that do justice in cases of this kind. That said, as we consider this part, we shall express concerns about the extent to which the rules are being changed to create something more novel than the ordinary civil recovery system.

The clause spells out the general purposes of part 5. Subsection 1(a) says that it enables

''the enforcement authority to recover, in civil proceedings before the High Court or Court of Session, property which is, or represents, property obtained through unlawful conduct''.

That brings us to the amendment, which is important and allows us to consider whether we should introduce a de minimis rule about the quantity of assets that should be aimed at in civil recovery proceedings. It would limit that quantity to sums of more than £10,000.

The Government, in introducing the Bill, have shown that they are keen to attack criminals of all classes and kinds. That includes not just drug barons living in palatial mansions in the home counties, but the smaller-scale criminal who lives off the proceeds of crime but has far fewer assets. Nevertheless, the Committee should carefully consider whether there is any desire to pursue people whose suspected benefits from unlawful conduct may be very small. Substantial costs will be associated with bringing those proceedings. In many cases, I suspect that the costs will not necessarily be recoverable from the person against whom proceedings were brought, by the time they have been cleaned out, although it is possible that the assets recovered will at least equal the costs. Costs of £10,000 are run up quickly in civil litigation, as I am sure that the Under-Secretary is only too aware in connection with the costs of litigation conducted through the Treasury solicitor when people bring actions for assaults in prison, and with other burdens for which Home Office Ministers have to cater. In that context, £10,000 is peanuts.

I stress to the Minister that £10,000 is a de minimis figure. Although it may sound like a lot of money, it is very little in comparison with litigation costs. I wonder whether introducing such a figure might have two merits. First, it would protect the Assets Recovery Agency, which would not have to worry about recovering small amounts of money under civil proceedings. The agency would know at the outset, notwithstanding possible public pressure, that the amount that would eventually be recovered would not be outweighed by the costs of doing so.

Tom Harris (Labour, Glasgow Cathcart)

Does the hon. Gentleman not accept that given the existing wording, subsection (1)(a) enables rather than compels the authority to proceed with civil recovery? Surely that should be left to the discretion of the authority. The authority would not be obliged to pursue sums of less than £10,000.

Dominic Grieve (Conservative, Beaconsfield)

The hon. Gentleman is right. There will be a discretionary remedy for the authority, and, as we shall argue later, we hope that the authority will exercise its discretion. The authority is being given a fairly novel and potentially draconian power to bring civil proceedings against people who may never have been convicted of an offence. Clearly, one would not expect it to waste time and money trying to recover assets that would be insufficient to meet the costs of the recovery process. However, if the hon. Gentleman will bear with me, I shall go on to explain there are two issues to consider.

First, if the authority comes under pressure, a de minimis provision will allow it more easily to say that whatever the circumstances, the assets available will be totally insufficient. Secondly—this is an important question: should individuals whose assets allegedly obtained through unlawful conduct are less than £10,000 in value be pursued at all, even if the agency is minded to pursue them? Given the novel nature of the power, and the civil remedy or civil litigation procedure whereby there is not an aggrieved party but

the state seeks to recover certain types of assets, there is a good argument that a £10,000 cut-off point would be appropriate. I am open to suggestions. Even in civil litigation nowadays, there is a de minimis cut-off point. One cannot go to the county court and issue proceedings for the £10 that one is owed. I am not sure of the position in Scotland, but one certainly cannot do that in England or Wales.

It is therefore accepted that there is a point at which the court should not be seized of or bothered with very small sums of money. I accept that hon. Members may argue that there might be circumstances in which somebody who is identified as having less than £10,000 of assets through unlawful conduct should be pursued. However, it is worth bearing in mind that we are dealing with a civil procedure, so the likelihood is that we will not be dealing with convicted criminals. We may well be dealing with people with unblemished reputations.

The Committee should also bear in mind the extent to which civil proceedings of that type could be exceptionally damaging to the reputation of the accused individual, even if they were to win the case. Proceedings are brought against someone by a very powerful authority, which effectively brands them as a criminal, because they are living off assets obtained through unlawful conduct. The proceedings will be public, and will probably attract a great deal of publicity. There may be occasions when individuals who are dragged through this process, and who have never had a criminal conviction, find that not a single asset is seized, and they are exonerated. However, in the meantime, enormous damage might have been done to their reputation.

If the high point of the agency's case is that it believes that less than £10,000 of an individual's assets has been obtained by unlawful conduct, is it reasonable that that person—who, as I have said, will probably never have been convicted of a criminal offence—should be put through such a process? That issue must be addressed now, and it will also arise in subsequent examinations of this part of the Bill. I have anxieties about the extent to which individuals might be badly damaged, although they were subsequently exonerated, and the fact that they might never recover from that damage.

Tom Harris (Labour, Glasgow Cathcart)

The hon. Gentleman seems to be making a case for never taking to court anyone who might be found not guilty. Everyone who is taken to court, even in a criminal case, has the right to prove themselves innocent, although they will have to go through the inevitable questioning.

The hon. Gentleman described the £10,000 limit as peanuts. However, if the recovery agency takes 50 or 100 per cent. of the ill-gotten gains, that is what is important, rather than the actual figure on paper. Similarly, when £1 million is taken from a big criminal, if that represents only 20 per cent. of his ill-gotten gains, it might be less of a blow to him than taking £8,000 would be to a smaller criminal.

Dominic Grieve (Conservative, Beaconsfield)

I take on board the hon. Gentleman's point, but it does not alter my argument, which is that this is an unusual remedy—because it is not a remedy at all, because nobody has done anything against the party that is bringing the action. That party is bringing the action in the name of public policy, on the basis that it is wrong that an individual should have assets that have been obtained through unlawful conduct.

There will be a civil test, so there will be civil proceedings. During the course of them, it is likely that an individual's finances and personal life will be trawled through. There is the capacity for a great deal of damage to be done. If the individual concerned is found to have substantial assets as a result of unlawful conduct, that is his problem, and few people are likely to have any sympathy for him. However, I wonder how public perceptions might change if it were felt that an individual was being hounded, because they were being put through a process that was extremely difficult for them, when it was clear throughout the unfolding of the proceedings that the maximum value of the assets being targeted for recovery was rather small. There is a danger that at that point, allegations of unfairness might be made. I am sure that the Minister wants to avoid that, because for the procedure to command acceptance and be approved, people want to see it working and taking money away from those who are manifestly criminal, or who at least behaved unlawfully and benefited from that conduct.

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

I understand why the hon. Gentleman has problems with the existing wording and wants a de minimis provision. However, there is a difficulty in including such a provision rather than leaving things to the enforcement authority. One can easily envisage a situation in which a drug dealer—that is the category that we have considered—comes here from another country and boasts that he or she has gained assets from illicit activities. Would it be an affront to the public if there were no way of proceeding against that person for sums that might be less than £10,000 but could be substantial—£8,000 or £9,000, say? How would the hon. Gentleman explain to people in this country that somebody who flaunted those ill-gotten gains from another country could not be proceeded against, as would be the case if the de minimis provision that he suggests were included?

Dominic Grieve (Conservative, Beaconsfield)

I take the hon. Gentleman's point. The matter could be dealt with not by an amendment but by an assurance from the Minister that consideration will be given to a de minimis provision, and that rules and guidelines will be published accordingly—but as the hon. Gentleman knows, I am always slightly reluctant to give discretion to the Executive if Parliament can identify something better.

I have no idea how many people in the United Kingdom have obtained £10,000 by unlawful conduct—that is a broad term—during their lives. I hope that there are not too many. I have a horrible feeling that if we include certain categories of potential offence, the number may be rather large. I do not

believe in criminality or approving of criminality, so I agree with the hon. Member for Edinburgh, North and Leith (Mr. Lazarowicz) that there may be public policy reasons why there should be no bottom limit. However, £10,000 does not go very far. If a person is running around the streets flaunting £10,000 of assets as ill-gotten gains, people down the pub may not think much of him. I do not see such an individual as a criminal leader in his community.

Tom Harris (Labour, Glasgow Cathcart)

I assure the hon. Gentleman that any person who flaunted £10,000 in my constituency—or almost any other Glasgow constituency—would not be seen as having peanuts. I suspect that very few people in Pollok, Anniesland or Cathcart have that amount in their bank account.

Dominic Grieve (Conservative, Beaconsfield)

I note the hon. Gentleman's comments, and I accept that £10,000 may appear to be a greater or lesser sum depending on where a person lives. However, even from the descriptions given by the hon. Member for Glasgow, Pollok (Mr. Davidson) of the criminal on the block in his community, I got the distinct impression that if such individuals had made only £10,000, they would not have been very successful. I am sorry to say that the hon. Gentleman is not here at the moment, but his description of the criminal lifestyle of a person in his constituency did not strike me as referring to a person who had made £10,000 by unlawful conduct, but to one who had made considerably more.

If the Under-Secretary does not like the figure of £10,000, I am open—as I am sure are other members of the Committee—to discussing another de minimis provision. I proposed the sum of £10,000 because I thought it might be a reasonable benchmark, and I started with the assumption about the actual litigation costs. A balance has to be struck, but the Under-Secretary may say that it can be struck by administrative means. I will listen carefully to what he says about that.

In a free society, individuals are entitled not to be bothered about trivia. It is desirable to tackle crime but, as I said earlier, the process through which an individual is being put has to be balanced against the amount that it is being alleged that he gained from his unlawful conduct. If we write a blank cheque and specify nothing for the Assets Recovery Agency, I am not sure whether we are doing our job properly. There are a number of hon. Members—

Ian Lucas (Wrexham) rose—

John McWilliam (Labour, Blaydon)

Order. Before the hon. Gentleman gives way, I must inform the Committee that the amendment is narrow, and says that the amount has to be £10,000 or more.

Ian Lucas (Labour, Wrexham)

Thank you, Mr. McWilliam.

Is it not important that there be no reference to an amount in the clause? Would not a limit of any sort undermine the important deterrent effect of the Bill? I know that that would be the case with two more provisions concerning the amounts of money that we seek to recover, and I suspect that in due course that

will apply to the Assets Recovery Agency, too. The disadvantage of having a figure in the clause is that it might fundamentally weaken the deterrent effect. The arguments that have been put forward do not dislodge the strong emphasis on that.

Dominic Grieve (Conservative, Beaconsfield)

I slightly question the real deterrent effect of the provisions. They will have a deterrent effect on individuals who derive substantial income from unlawful conduct if they discover that fellow criminals in that category are being stripped of millions of pounds. That will send a powerful deterrent message: they will know that the state has the resources necessary to pursue the Mr. Bigs who have not been convicted of crime. The upshot will be that most of those criminals will remove their assets from the United Kingdom, or at least seek to do so if they have not already been tackled by the agency. That would have a desirable effect on general criminality, by reducing the pool of money available that is often recycled into further criminal activity.

It is unlikely that the provision would deter, for example, a drug addict. Such a person may have a chaotic lifestyle, and although he has not been convicted of any offence, he may be suspected of dealing—indeed, there may be evidence on the balance of probabilities that he has dealt—in drugs on a small scale to feed his habit. I doubt that he will wake up in the night sweating at the thought of the Assets Recovery Agency knocking at his door. If the agency does pursue him, he may feel that he has been victimised. That will be especially true if he believes that he has a defence and that he has been dragged through the procedure, which may be ruinous for him and further disrupt his life. That is why we have to be careful about the point at which that balance is struck. If I felt that introducing a £10,000 provision would remove the deterrent effect, I would be swayed by the arguments of the hon. Member for Wrexham (Ian Lucas). However, I am not persuaded. I believe that in all likelihood the provision will be applied only to substantial criminals, partly because those who are not successful tend to have acquired criminal records and will be dealt with through the confiscatory mechanism. The provision is well targeted against crime barons who have escaped prosecution—and some of those may be foreigners with a bad track record and a bad reputation abroad, who have moved to this country with their assets. I find the idea that the power will be used on such a small scale as has been suggested improbable. If that is indeed how the Assets Recovery Agency will exercise its powers, I am not sure whether I want to give it such powers. Quite apart from the fact that a lot of taxpayers' money will be required for rather a small return, I am worried about unfairness.

I have gone on for rather a long time, and I hope that no hon. Member wanted to intervene. Now it would be better for the Committee to have a general discussion on the subject.

Mark Field (Conservative, Cities of London and Westminster)

This is a sensible, practical and pragmatic amendment. I appreciate that for many hon. Members the prospect of allowing a blind eye to

be turned to someone who has stolen £8,000, £9,000 or £10,000 sticks in their gullet. To return to the point made by the hon. Member for Wrexham, one of the great practical anxieties is that if we do not introduce a de minimis provision we run the risk that the Bill will be ignored. For all practical purposes, the great expense that the agency will incur for each investigation will mean that informally, if not formally and on the record, it will have to have some sort of de minimis provision.

Nothing would be worse than bringing the law into disrepute. One need only consider the law on illegal drugs and how a blind eye is being turned, leading to a rapid unwinding, especially among the young, as they see the rule of law being so obviously ignored.

A figure of £10,000 seems sensible. It might be argued that the de minimis provision should be set at a rather higher level, because of the enormous expense involved in each recovery mechanism. The worry is that, as we are trying to get the Mr. Bigs and the next level down—the Mr. Not-quite-so-bigs—the agency must not be effectively paralysed by an enormous number of fairly trivial claims, which would be the practical reality in the absence of a de minimis provision.

I might understand if the Minister were to say that he would rather not say on the record but that some guidance will be given to the agency. I appreciate that it may be difficult to state that blatantly on the record. As I said a moment ago in response to the earlier comments of the hon. Member for Wrexham, it would be worrying if a blind eye were to be turned to serious, albeit in a numerical and financial sense rather trivial, aspects relating to the proceeds of crime. I hope that we shall have a sensible discussion on the matter.

I was a junior solicitor at the time of the insolvency of the Bank of Credit and Commerce International, on which I worked exclusively for eight or nine weeks. I accept that it was a high-profile case, but dozens of staff were working full-time, poring over an enormous number of documents. If we do not give guidance to the agency at this juncture, it is easy to see, in relatively trivial cases, that enormous costs could be ratcheted up. The practical reality is that the agency will tend to use a small number of forensic accountants and lawyers. Those people and other professionals will have a high level of expertise and, dare I say it, their hourly costs will run into many hundreds of pounds.

Tom Harris (Labour, Glasgow Cathcart)

The hon. Gentleman said that the amendment would give guidance to the director of the Assets Recovery Agency. However, the amendment refers not to guidance but to a mandatory legally enforceable limit under which the agency would not be able to act. He suggested that if the Bill remains unamended the Assets Recovery Agency will descend into chaos. Does that suggest a lack of faith in a future director of the agency? Will he explain that lack of faith?

Mark Field (Conservative, Cities of London and Westminster)

It is not that I lack faith in the director. I do not think that the agency will fall into chaos, but there is a real risk that, if a de minimis provision, whether formal or informal, is not put in place, there will be an enormous number of claims and the agency will not see the wood for the trees. I am interested to hear what the Under-Secretary has to say.

Bob Ainsworth (Labour, Coventry North East)

I am suffering from something similar to you, Mr. McWilliam. I am looking for suspects rather than blame. I hope that you do not cast your eye in my direction.

John McWilliam (Labour, Blaydon)

Had the Under-Secretary had been listening to earlier exchanges, he would understand that the Minister of State, Scotland Office had put a curse on my grandson, who passed it on to me.

Bob Ainsworth (Labour, Coventry North East)

You now understand, Mr. McWilliam, why I have tried hard not to offend my hon. Friend in any way.

I thank the hon. Member for Beaconsfield (Mr. Grieve) for his general welcome for the measures under part 5. He rightly said that we are now about to move on to new provisions and a new branch of the law. I accept his argument, and I genuinely look forward to his proposals. I look forward to what he can bring to the Bill and we shall listen carefully to his points, especially if they are made in the spirit of his opening comments.

The amendment would mean that civil recovery proceedings could be taken only in respect of recoverable property if it were valued at £10,000 or more. The Government agree that civil recovery proceedings should be applied only when substantial amounts are involved. Many of the points made by the hon. Gentleman are absolutely right and we agree in principle that there should be a financial threshold. Some of the main issues have been covered in the interventions by my hon. Friends. My hon. Friend the Member for Glasgow, Cathcart (Mr. Harris) rightly said that, under subsection (1)(a), we will have to rely on the discretion of the director of the agency about where he points the resources and how he uses those that are available to be effective in the recovery of the proceeds of crime. If we were to find that the agency was using the powers of civil recovery to chase drug addicts with a chaotic lifestyle, we would be most disappointed.

My hon. Friend the Member for Edinburgh, North and Leith said that perhaps the matter should be handled in another way and guidance should be given. My hon. Friend the Member for Wrexham said that he did not necessarily want the issue enshrined in the Bill.

Those are the main points that I want to make, other than to bring to the attention of the hon. Member for Beaconsfield the provisions contained in clause 286. From the substance of his remarks, I hope that those provisions will satisfy him. When I saw the amendment, I thought that we would have the classic argument about what should be contained in primary legislation and what should be contained in secondary

legislation. It seems that his intention was to point the agency in the direction in which it should be travelling, which was to use the power when substantial amounts of funds justify civil recovery. I point him to the provisions in clause 286(1) and (2), and to subsections (3) and (4), for the manner in which those provisions should be applied.

Clause 286 provides for the setting of a financial threshold in secondary legislation. It would not be helpful to set that threshold in primary legislation. The Secretary of State has the power to set a financial threshold below which proceedings for a recovery order cannot be initiated. When such an order has effect, the enforcement authority will not be able to start proceedings for a recovery order unless it reasonably believes that the aggregate value of the recoverable property is not less than the amount specified.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister. He has correctly highlighted the provision of that power. Even if it had not been specifically spelt out, it would have been implicit in the Bill. Can he tell us how the Home Office views this, and what sort of minimum figure is floating around in its mind?

Bob Ainsworth (Labour, Coventry North East)

I intend to deal with that. I do not think that the hon. Gentleman and I will differ in our thoughts on the matter, or on the amount. I assure the Committee that we intend to make the order provided for under clause 286. It will be made by the Secretary of State after consultation with Scottish Ministers. It will be better to establish the financial threshold in that way, because if the threshold needed to be adjusted—if, for example, potential targets for civil recovery were dividing their property so that it fell short of the threshold—that could be done more easily than if it was specified in primary legislation.

Nick Hawkins (Conservative, Surrey Heath)

I wanted to follow up the discussion between the Under-Secretary and my hon. Friend the Member for Beaconsfield. Although the Under-Secretary may say that the figure that he has in mind might need to be adjusted later, and therefore he wants to specify the threshold in secondary legislation, would it not be better for the primary legislation at least to indicate the sort of figure under consideration? Surely a de minimis provision is not likely to change a great deal. The Law Society of England and Wales has argued that a de minimis provision should be clearly set out, for all the reasons given by my hon. Friend. If the Government have already made up their mind on what sort of figure they will specify, now is the time to specify it, not later. It is bad drafting practice for the Government to say that they know what they want to do, but they will not do it until later.

Bob Ainsworth (Labour, Coventry North East)

What a shame it is that the hon. Gentleman should ruin the serious conversation that we were having. He is playing the usual parliamentary game of what should be in secondary legislation and what should be in primary legislation. He has trodden that route in many Committees. A serious point was being made by the hon. Member for Beaconsfield, and

I shall continue to address it. I do not know whether the hon. Gentleman is suggesting that we include parameters in the primary legislation, but that would not be appropriate. If we tell the Committee our broad intentions, and we subsequently take the powers to specify by order, having consulted the appropriate people, we will have the flexibility to adjust the figure should that need arise, subject to parliamentary scrutiny. We hope that civil recovery will reduce crime by attacking the profit motive and disrupting organised crime rings.

As my hon. Friends have pointed out, we expect the director and Scottish Ministers to use the powers in their jurisdiction to consult on the cases that involve the largest sums. Research has revealed that there should be no shortage of such cases. Given the cost of civil recovery proceedings, in practice we should concentrate on high-value proceeds, as the hon. Member for Beaconsfield rightly pointed out. We have not made a final decision on the level of the threshold.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

I was just reading in Hansard comments made by the Minister for Police, Courts and Drugs, who mentioned £10,000 and ''a substantial sum'', and I should like the Minister's assurance that what he says about secondary legislation is compatible with what I have read.

Bob Ainsworth (Labour, Coventry North East)

It is complicated to deal with lots of different matters. I cannot remember what the hon. Lady is referring to when she mentions £10,000.

We have not made any final decisions. We need to keep our minds open and consult properly on the matter. The current thinking is that it is very unlikely that we shall set a threshold figure below £10,000.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

In one passage, the Minister for Police, Courts and Drugs says:

''Like the existing cash forfeiture scheme, that power will only be available where a substantial sum of cash is discovered, perhaps similar to the existing minimum threshold of £10,000.''—[Official Report, 30 October 2001; Vol. 373, c. 765.]

Bob Ainsworth (Labour, Coventry North East)

That is what I thought the hon. Lady was referring to. In this part, we shall consider the cash forfeiture scheme, in which the level is £10,000. We are not proposing to change that. We are discussing civil recovery, and I hope that it will satisfy her to know that we do not think that it is sensible to set a threshold for civil recovery of less than £10,000. I do not want to go any further than that. I have given the Committee a clear indication of our thinking, which is not out of line with the passage that she mentioned, which referred to another part of the Bill. Her comments are not out of line with the eminently sensible thinking of the hon. Member for Beaconsfield, either.

Norman Baker (Liberal Democrat, Lewes)

For the record, on 30 October the Minister for Police, Courts and Drugs mentioned the figure of £10,000 in respect of civil recovery proceedings in column 764. He mentioned forfeiture in the subsequent column.

Bob Ainsworth (Labour, Coventry North East)

I cannot remember every word that was spoken on Second Reading, or whether my right hon. Friend revealed that fact at that point. If he did, that is fair enough. If that is the thinking, we should insert a threshold and use secondary legislation to do so, in order to give us the flexibility that might be required in certain circumstances.

I think that our thinking is broadly in line with that of other members of the Committee. I therefore ask the hon. Member for Beaconsfield to accept that our intention is similar to the spirit in which he tabled the amendment. That is a more sensible and flexible way of proceeding, but it is not out of line with the views that he expressed.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister for his comments. I hope that the debate has been useful. Discussing the matter has been worth while, as the debate is on the record, and the Government can refer to it when the rules are formulated.

The Minister's comments have substantially reassured me that we are not going down the road of using legislation to pursue individuals who do not warrant such treatment. If we were to go down that road, a taint of unfairness would rapidly creep into the proceedings, and public money would be wasted.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 367, in page 145, line 16, at end add—

'(3) Civil proceedings under this Part shall not be available if there has been an acquittal in criminal proceedings in relation to the same unlawful conduct alleged or relied on.'.

John McWilliam (Labour, Blaydon)

With this we may discuss amendment No. 356, in clause 248, page 146, line 7, at end insert

', save where there has been a previous positive finding in relation to a defence to confiscation proceedings pursuant to section 6 and there is no fresh evidence that was not available to the Director at the time of the previous proceedings.'.

In light of the extensive nature of the previous debate, and the content of amendments Nos. 367 and 356, I doubt whether it would be in order also to have a stand part debate.

Dominic Grieve (Conservative, Beaconsfield)

I will bear those comments in mind. I have no objection to that course of action. I think that, by the time the Committee has finished debating these amendments, we will have exhausted our deliberations on the clause.

The amendments raise important issues, but not identical ones. The issues are substantially different, and they must be examined separately—although it is right that the amendments are grouped together.

The amendments raise the question whether there should be a limitation on the power to initiate proceedings for civil recovery. Amendment No. 367 addresses that matter when a criminal prosecution has failed: amendment No. 356, which attaches to clause 248, addresses it when confiscation proceedings have failed—rather than merely the criminal proceedings attaching to a defendant.

It is important to acknowledge that we are creating an unusual power. It is sometimes easy to view—or to lull other people into viewing—a civil recovery procedure as similar to the adversarial procedure, by which individuals bring claims against each other, or even by which a Department might bring a claim for a debt owing to it. However, it is an entirely different matter: in such civil proceedings, it is not necessarily the case that the state will be out of pocket—although I acknowledge that we will consider tax issues later—or that any individual will be a victim. The basis of the proceedings is the state's belief that an individual owns assets that were acquired by unspecified unlawful conduct, and that it is in the public interest that that individual should be deprived of them.

Committee members must bear that point in mind, because we must be careful, as there is a danger that the Assets Recovery Agency might be perceived as an organisation that is allowed to take a second bite at the cherry, after the ordinary proceedings that are usually brought against criminals have failed.

I am troubled by that as a concept, because it comes close to offending the double jeopardy rule. I accept that it can be argued that there is no double jeopardy, because one of the proceedings is civil and the other criminal. However, the hybrid nature of the proceedings brings us close to offending that rule. It is a well-established legal maxim that it is in the interests of the public that there should be finality. If the Assets Recovery Agency's civil proceedings process is a way of reopening proceedings that have been resolved earlier, to the public mind, there are serious matters that we must bear in mind.

I am mindful that the two amendments are very different. Amendment No. 367 would prevent civil proceedings from being brought if there had been an acquittal in criminal proceedings in relation to the same unlawful conduct alleged or relied on. The Committee should consider that. If I argue against the proposition that led me to table the amendment, I accept that there is a growing number of cases in which individuals have sought to succeed with civil proceedings where criminal proceedings failed. Obvious examples spring to mind, such as the acquitted murderer who is subsequently sued by the relatives of the deceased. In some instances, that procedure has been successful.

Comments were made in the past about the undesirability of revisiting matters in civil litigation that were apparently resolved in criminal litigation. One can remember the example of Dr. Bodkin Adams who was adept at recovering large sums in libel damages in the years that followed his acquittal for murder, which was partly because newspapers failed to appreciate that he was still alive. In his old age, he was able to issue writs, and in those days it would have been impossible for newspapers to reopen proceedings with libel actions, so they had to pay up.

Although I am mindful of the rule of finality, the Committee may consider arguments that suggest that civil recovery proceedings should be allowed against an acquitted criminal's assets. However, we should be careful when considering the nature of the civil

recovery proceedings. They are more akin to a form of criminal or administrative state sanction than ordinary civil litigation that is brought between individuals who want redress. The matter is not about redress but about the confiscation or removal of assets that the state believes were unlawfully acquired without, necessarily, an identified victim—not even the state itself. We must be careful, which is why I ask the Committee to consider the amendment.

The arguments in favour of amendment No. 356 are more compelling, because we are considering not a previous acquittal for a criminal offence but the previous failure of confiscation proceedings that were brought in relation to the same assets. The Committee will know from our previous discussions that the way in which confiscation proceedings may be brought for general criminal conduct is enormously wide. It does not necessarily require the trigger of an offence with assets linked to that offence. The trigger provisions can be entered, and assumptions are raised, as are the matter of general criminal lifestyle and rebuttable assumptions.

A person could have previous convictions and have been taken through a failed confiscation process that was based on the criminal lifestyle assumptions. The Committee should consider the extent to which the odds would be stacked against a defendant who was taken through those proceedings. In such circumstances, should the Assets Recovery Agency be able to come back and have a second bite of the cherry with ordinary civil proceedings if no fresh evidence is available to the director?

I shall be asking for the two amendments to be taken separately. Amendment No. 356 raises important issues and I have yet to be persuaded by the Under-Secretary's argument against it, unlike amendment No. 367, about which I am open to easy persuasion that it is a proposal that we should discuss but not necessarily press to a Division.

The Government are in danger of setting up a draconian system that allows the director too much licence. Parliament must fetter his discretion and say that, when he or the prosecutor has brought confiscation proceedings and they have failed, unless there is fresh evidence, he cannot subsequently say, ''Sorry, we failed in that case. We had the wrong judge. It was a Crown court judge. He didn't know what he was doing. Let's go back to a High Court judge, who knows much more about it.'' I see the Under-Secretary smiling, because I am referring to the points that we discussed earlier. However, I fear that such a situation may come about.

In those circumstances, it would be wrong to use the civil proceedings recovery mechanism. Let us suppose that the state, the prosecutor or the director cannot get back the assets by the confiscation regime, but can then reopen it. The two systems will clearly be running in parallel and cannot be dissociated from each other, and that has a taint of serious unfairness about it. Will the Under-Secretary carefully consider amendment No. 356? There would be no real disadvantage in accepting it. There would not be many instances in which the director would be handicapped. If the case

against such a defendant failed in confiscation proceedings, I dare say that it would be easy to find fresh evidence that is necessary to bring the application under the civil recovery route. I ask that the two amendments be taken separately. Although they are linked, different issues arise in respect of each of them.

Norman Baker rose—

John McWilliam (Labour, Blaydon)

Order. Before I call the hon. Gentleman to speak, I must say that amendment No. 356 can be voted on, but that will happen when we come to clause 248, to which it relates.

Norman Baker (Liberal Democrat, Lewes)

Thank you, Mr. McWilliam. I concur with the comments of the hon. Member for Beaconsfield, who presented his case sensibly, without over-emotionalising it. Amendment No. 367 is important. There may be justification for civil proceedings to be pursued if criminal proceedings have failed. After all, it is a different test and different judgments will have to be made when particular actions are taken. I am not sure, however, that the hon. Gentleman's analogy stands up. For example, it is possible for someone to be charged with murder but acquitted, when a charge of manslaughter or other lesser charge might have stuck. That is the difference. There is more of a similarity between the essence of criminal and civil proceedings in that case than there would be in the example cited by the hon. Member for Beaconsfield. That is why I am slightly uncomfortable with what is in the Bill.

Like the hon. Member for Beaconsfield, I am open to persuasion, but a person could be seen by the public—or be misinterpreted or portrayed wrongly in a newspaper—as someone who had been cleared of an offence, but who was then pursued for the same offence by the back door. The provision is open to such an interpretation, so the Government must be aware of that and have a ready response to that charge when it is made as a result of such proceedings, as I am sure it will be at some point.

Ian Lucas (Labour, Wrexham)

Does not supermarkets' policy of pursuing shoplifters provide us with a helpful analogy?. They undertake to commence civil proceedings against individuals regardless of whether they are convicted or acquitted of an offence. The supermarkets do that because it is an effective and potent deterrent, and that guidance may be useful in considering the amendment.

Norman Baker (Liberal Democrat, Lewes)

As the hon. Gentleman says, some commonality is involved. The difference is that in that case the Crown Prosecution Service would pursue criminal proceedings, while the supermarket's civil proceedings would involve a different body. In both the cases under discussion, the public would perceive that the state was involved—that one arm of the state was having a go when a different arm of the state had failed. That is where the comparison breaks down, although I agree that there are some similarities.

On amendment No. 356, the Minister may say that in no circumstances would the director want to undertake proceedings if no new evidence were available. Indeed, I hope that that is so. It would be perverse if he or she wanted to pursue the matter in such circumstances. If that is so, there should be no objection to the amendment, which seems entirely sensible. The Minister will either have to say that there are circumstances in which the director will want to pursue proceedings in which no new evidence is available—in which case it would be helpful if he would outline them—or that there are no circumstances in which that would occur, in which case the amendment should be acceptable. I shall be interested to hear the Minister's response.

Bob Ainsworth (Labour, Coventry North East)

The hon. Member for Beaconsfield is right to say that although the amendments have been grouped together—I understand why, as they relate to the same issues—they are different, so perhaps we should speak to them separately.

Amendment No. 367 would prevent civil recovery or cash forfeiture proceedings from being initiated in respect of property that is alleged to have been generated by conduct that has been subject to criminal proceedings that resulted in an acquittal. The Bill makes provision for the state to bring proceedings to recover property that is or represents property obtained through unlawful conduct, or, in the case of cash, that is intended for use in unlawful conduct. It does so regardless of whether proceedings have been brought for an offence in connection with the property.

As I said when we discussed part 1, the policy is that the prosecution of criminals will continue to take priority. No member of the Committee would challenge the principle that in the first instance we should try to prosecute criminals and, when appropriate, to lock them away. Nothing in the Bill should discourage people from having that as their first priority, and we have tried to make sure that that is safe. In some instances, it may rapidly be discovered that, for example, the person involved is dead. However, with the exception of such circumstances, prosecution should always take priority over civil recovery, and when someone has been convicted of an offence, criminal confiscation should be the normal method used to recover the proceeds of crime.

When no conviction has been obtained, the director should be able to consider civil recovery action. I do not accept that an acquittal in criminal proceedings in relation to the same unlawful conduct should automatically bar civil recovery, and I do not believe that the hon. Members for Beaconsfield and for Lewes (Norman Baker) are pushing that point. The person involved may not have been convicted for a specific offence and charged in criminal proceedings, but there may be compelling evidence that some of his assets were none the less derived from either his unlawful conduct or that of other people with whom he is associated.

Norman Baker (Liberal Democrat, Lewes)

Does the Minister also accept that in some circumstances the evidence presented in court in a criminal prosecution is such that it is absolutely clear that the accused should be found not guilty? I do not mean simply a technical not guilty verdict because of faults in the prosecution evidence presented, for example, but a verdict returned because a convincing case has been put. Under those circumstances, it might be seen as perverse if asset recovery were pursued.

Bob Ainsworth (Labour, Coventry North East)

The hon. Gentleman is right that if it becomes apparent, for whatever reason, that the assets are the proceeds of crime, and the structure of legislation prevents those assets from being chased and recovered by the state, the people who elected us would regard that, too, as perverse. They would expect us not to pass legislation that allowed that to happen.

Circumstances therefore exist in which the absence of sufficient evidence to secure a criminal conviction does not necessarily mean that there will be insufficient evidence for civil recovery. The civil courts are governed by a set of rules on admissibility of evidence and procedure different from those for criminal courts. For example, the High Court would be more able to admit a greater range of evidence, including hearsay evidence, previous conviction evidence and self-incriminatory material obtained under compulsion, and new evidence might come to light after the trial for the particular offence, which may show a link between the property and the criminal conduct.

Mark Field (Conservative, Cities of London and Westminster)

I think that the point made both by my hon. Friend the Member for Beaconsfield and by the hon. Member for Lewes was that the state would have a second bite at the cherry, which makes me feel instinctively uneasy. We just heard the example of new evidence coming to light—I accept that that was in relation to a criminal case rather than a civil case, although I presume that there would be opportunity for a retrial on a civil basis. Reference has been made to a robust example whereby a criminal case had fallen apart amid great controversy, and relatives subsequently initiated a private prosecution. That is entirely different: the state acted in the first instance, followed by a private individual prosecution. We are concerned about the state having a second bite of the cherry. Although I understand where the Minister is coming from in that regard, it will surely be seen as draconian for two closely related arms of the state, having failed the first time round, being given a second chance—

John McWilliam (Labour, Blaydon)

Order. That is a very long intervention. If the hon. Gentleman wants to take part in the debate, that is another thing entirely.

Bob Ainsworth (Labour, Coventry North East)

The hon. Gentleman is right. If the proceedings are used in such a way, there may be a reaction. It is also a double-edged sword. Most of our constituents would want us to pursue relentlessly the kind of people against whom we hope that civil recovery will be effective—the modern Al Capones, or Al Capones, for those who prefer that pronunciation. If criminal investigation and prosecution is not available, people will want us to consider criminal

confiscation, under the structure of the Bill, and if that is not available, they will want us to pursue civil recovery. The hon. Gentleman is right to say that if the powers were misused, there would be a great reaction against them. However, our constituents want us to take effective action against the individuals whom we are talking about, who exist in towns and cities the length and breadth of the country.

Norman Baker (Liberal Democrat, Lewes)

Let me try again. My concern is about a situation in which there is a criminal prosecution, and it is crystal clear, beyond any doubt, that the accused is not guilty of the charges made against him or her—for instance, he or she had a cast-iron alibi. Will the Minister assure me that when that person leaves the court with no stain on their character in anybody's eyes, there will be no question of pursuing civil recovery in those narrow circumstances? Of course I agree with the Under-Secretary that the tests are different, and that there may be appropriate reasons for bringing civil proceedings, but sometimes the comparative cases for criminal prosecution and civil recovery may overlap to such a degree that if innocence is established beyond doubt in one, it would be perverse to pursue the other.

Bob Ainsworth (Labour, Coventry North East)

I accept what the hon. Gentleman says, but we do not believe that the powers for recovery in part 5 should be used routinely against people who have been acquitted of criminal offences. None the less, I do not believe, either, that we should rule it out or deprive the agency of that ability.

We are talking about two different processes. A person pursued in the criminal courts may well be absolutely innocent of the crime that he is said to have committed. Civil recovery procedures do not breach the principle of double jeopardy, because we are not talking about prosecution; we are talking about the proceeds of crime and being able to show—to the civil standard—that on the balance of probabilities, property is the proceeds of crime. Those are two separate issues.

I accept that civil recovery should not be considered routinely, but in some instances it will be apparent that although criminal proceedings have failed, civil recovery is the glaringly obvious route down which the director should go. The amendment would prevent the director from being able to do that, and the tone of his introduction led me to believe that the hon. Member for Beaconsfield was prepared to withdraw it.

Vera Baird (Labour, Redcar)

I have a residual sympathy with what the hon. Member for Lewes said, although there should not be a hard and fast rule. It must be appreciated that bringing proceedings for a second time under the civil recovery powers will involve the allegation that property has entered a person's possession through criminal conduct. Civil recovery proceedings will require a person to disclose many details of his financial affairs and will put much of his life on public display again. That can have a dramatic, long-lasting and damaging effect on a person's life.

There is something in the criminal sphere called ''The Code for Crown Prosecutors'', which regulates the Crown Prosecution Service's discretion to decide

when to bring a prosecution. Broadly speaking, the CPS prosecutes only if there is a more than 50 per cent. chance of conviction—that is a relevant point—and if prosecution is in the public interest. Granted, those criteria might not be quite plumb with the second set of proceedings, but will my hon. Friend consider introducing a code of conduct and discretionary judgement for the Assets Recovery Agency director, so that fears such as those expressed by the hon. Member for Lewes would be groundless? The public would then be reassured.

John McWilliam (Labour, Blaydon)

Order. For the sake of equality, I must say that that, too, was a long intervention—although the hon. Lady is quite entitled to take part in the debate.

Bob Ainsworth (Labour, Coventry North East)

My hon. Friend is right to say that civil recovery proceedings could alarm people if they were pursued following an acquittal, but there are many instances in which they may be appropriate. For instance, what if the person who is pursued is innocent, but the proceeds of crime are held by another person? Amendment No. 367 would prevent us from pursuing the proceeds of crime in courts if the original attempt to convict failed.

Vera Baird (Labour, Redcar)

Yes.

Bob Ainsworth (Labour, Coventry North East)

My hon. Friend would not want that to happen. She asked whether there ought to be a code of conduct. Let me return to that question after we have discussed the amendment No. 356, because that raises many of the same concerns in a different context.

Amendment No. 356 would prevent civil recovery proceedings from being initiated when, after a person had been convicted, he had successfully resisted criminal confiscation proceedings being taken against him and no fresh evidence was available. Let me clarify the relationship between civil recovery and criminal confiscation. When we discussed the director's functions under part 1 of the Bill, I explained that when a person has been convicted of an offence, criminal confiscation will be the normal method of recovering the proceeds of crime. Therefore, criminal confiscation proceedings will have ceased before civil recovery is considered.

The amendment seems to presuppose that in civil recovery proceedings, the issues under consideration will be the same as those on which the court has already decided during the criminal confiscation proceedings. That is not the case. Civil recovery is different from criminal confiscation. A finding that property does not represent the defendant's proceeds of crime for the purposes of part 2 would not prevent the property from being considered the proceeds of unlawful conduct under part 5. Although they both have the same standard of proof—the balance of probabilities—different issues arise under each scheme.

Dominic Grieve (Conservative, Beaconsfield)

That comment gives me slight cause for concern. Such an argument could apply to confiscation in relation to particular criminal conduct,

but when, under criminal confiscation proceedings, the assertion has been drawn widely that assets are the result of general criminal conduct, it is difficult to see that assets could exist that could then, under civil recovery proceedings, be considered to be different from those that were examined under the general criminal conduct proceedings.

Bob Ainsworth (Labour, Coventry North East)

The hon. Gentleman is absolutely right, but that is not what his amendment says. It deals with what will happen when someone has successfully resisted criminal confiscation. The hon. Gentleman does not set out in the amendment whether it refers to the general criminal lifestyle provisions or to particular criminal conduct. He cannot blame me for pointing out that there are different issues.

Dominic Grieve (Conservative, Beaconsfield)

Let us suppose that particular criminal conduct has not been proved, and that no confiscation has taken place because there were not deemed to be any benefits. If a general attempt is then made to bring civil recovery proceedings, the particular asset that was deemed to be the result of particular criminal conduct should be isolated and ring-fenced, so that it cannot be touched under the civil recovery proceedings. Otherwise, there would be manifest unfairness. I accept that when a particular recovery has been unsuccessful, other general assets could be considered. However, I cannot see how the assets that have been focused on under a particular recovery proceeding, and found not to be confiscatable, can be amenable to civil recovery.

Bob Ainsworth (Labour, Coventry North East)

Let us continue to examine the issues, because, as I think members of the Committee recognise, they are important. Part 2 provides for the confiscation of the defendant's benefits, either from his general criminal conduct or from his particular criminal conduct. Particular criminal conduct means the offences of which the defendant has been convicted in the current proceedings, together with any offences taken into consideration by the court in passing the sentence. In both cases, the defendant must have exhibited the criminal conduct.

Under part 5, the focus is on the property rather than on the person who holds it. The respondent in civil recovery proceedings—although he may have previously been a defendant in criminal proceedings—will not necessarily be the person who committed the unlawful conduct that gave rise to the original recoverable property. The enforcement authority has to show that that property represents the proceeds of crime. It does not have to show who committed the crime. It would, therefore, be possible for property that cannot be proved to be the proceeds of a defendant's crime under part 2, to be the proceeds of unlawful conduct under part 5. The director, or Scottish Ministers, would need to provide information that showed that the property was, or represented, recoverable property. They would not need to show that the property was derived from the particular offence.

To explain that point, I offer an example; I will refer to the assumptions, because the hon. Member for Beaconsfield says that he cannot understand how, in any circumstances, the one would apply while the other might not. Let us say that a car falls within the scope of the assumptions under part 2, but that the defendant shows that it was stolen by someone else and that, although it was in his possession, he did not know or suspect that it was the proceeds of crime. Therefore, the car is not his benefit from whatever crime was involved—for instance, money laundering—so it would not constitute his benefit from general criminal conduct. The amendment would prevent civil recovery proceedings from being brought in respect of that car. However, as the Bill stands, the director could show that the car was obtained by theft; in that case it would be recoverable, and he could bring proceedings in respect of it.

Dominic Grieve (Conservative, Beaconsfield)

This is a fascinating discussion. With regard to clause 245, I made an assumption—which the Committee might also have made—that an action to recover property obtained through unlawful conduct was likely to be directed at the person who obtained the property, because all of us may possess property that has been obtained through the unlawful conduct of somebody else. That can happen.

However, under the ordinary rules of civil law, unless we are proved not to be a bona fide purchaser for value without notice—or we fall within the other exemptions that exist—that property cannot be recovered. The Minister is suggesting a sweeping power of civil recovery which, worryingly, goes beyond what I ever imagined. We did not really look at that under clause 245, because it did not cross my mind that it might be intended to be used to recover property from a person who held it innocently of any wrongdoing. That issue must be considered.

Bob Ainsworth (Labour, Coventry North East)

A purchaser for full value would, no doubt, be able to present that case, and we will get an opportunity to discuss various elements of civil recovery when we debate subsequent clauses.

I am sorry that the hon. Gentleman was not aware that what has been described was at least a possibility under civil recovery proceedings. Those proceedings are not aimed at the individual who committed the crime. They are aimed at the recovery of the proceeds of crime. It is a property-oriented provision, to be pursued through civil proceedings.

Dominic Grieve (Conservative, Beaconsfield)

I appreciate that, and I always appreciated the fact that a person does not have to do the actual obtaining in order to have civil recovery proceedings brought against them. However, I assumed—wrongly—that if civil recovery proceedings were brought against a person for possessing property that was unlawfully acquired, the ordinary civil law tests would apply to establish that the category of property fell to be recovered and the individual could not legitimately pray in aid the normal defences in such civil claims, such as saying that despite the fact that the property's origin was unlawful, he was in lawful possession of it.

Bob Ainsworth (Labour, Coventry North East)

The hon. Gentleman is aware that we are discussing an introductory clause that opens up a wide-ranging debate on part 5 of the Bill. As we get into the Bill and discuss the mechanisms and safeguards that it contains, he will find that the safeguards that he wants are in the Bill. The normal provisions for a purchaser for full value are in clause 306, in part 5, and they are protected. The hon. Gentleman need not fear that a prosecutor will pursue a civil recovery when a person who did not commit the crime can show that property was purchased for full value, because that would be an absolute defence.

I give the hon. Gentleman a valid case. In the circumstance that I explained, we can consider a particular car. We will take away the de minimis considerations and discuss not a Vauxhall Astra, but a Rolls-Royce or an armoured BMW—which I am reliably informed exists in the criminal fraternity of this country. Such a car would not be confiscatable under part 2 even if the assumptions had been met, yet the car could be shown to be the proceeds of crime—and, therefore, possibly recoverable under part 5.

I can tell the hon. Gentleman, and my hon. Friend the Member for Redcar (Vera Baird)—I know that she has worries too—that I do not expect anyone to go down that road, and I would be fearful if anyone did so without due consideration. However, in such circumstances, and when dealing with the people with whom we will be dealing, we should never say never. Those circumstances could exist, and provide an opportunity in which there is a clear case for the confiscation under part 5 of property that was exempted under part 2. If the amendment were accepted, we would rule out that possibility.

I shall give way to the hon. Member for Lewes.

Norman Baker (Liberal Democrat, Lewes)

I did not indicate that I wished to intervene, but I was thinking about it, so the Minister is obviously telepathic.

The Minister rightly makes the case that there are occasions when civil proceedings need to flow after an acquittal. I understand and accept that. Will he accept that there may be circumstances, which we cannot necessarily predict, in which civil proceedings should not follow an acquittal? The concept of never saying never works both ways. Will he consider further the helpful suggestions of the hon. Member for Redcar, which are not inconsistent with the Bill? If he examines clause 2(5), he will notice that there are already provisions for guidance from the Secretary of State. We want proper guidance to be given to enable a decision to be taken about whether civil proceedings are appropriate, because sometimes, such proceedings may not be appropriate.

Bob Ainsworth (Labour, Coventry North East)

I do not think that there is anything substantial between us—I certainly hope that there is not. On both sides of the argument, we are grappling to look for circumstances that may never arise. We found an example that I put to the Committee in which property would not be confiscated under part 2, although we should not rule out an attack aimed at confiscating it under part 5. In practice, the hon. Gentleman knows that we want the whole of the

proceeds of crime operation to work within the guidance that we shall set. Therefore, criminal confiscation should be the first call on every occasion. Only after those proceedings have been exhausted should civil recovery even be considered. All I am saying to the Committee is that we should not absolutely bar the director from giving consideration when it is clear that property is not confiscatable under part 2. Although the individual may be found innocent of the crime for which he has been pursued, we should not say, as amendment No. 367 does, that in no circumstances could the director consider civil recovery.

Dominic Grieve (Conservative, Beaconsfield)

I am sorry to press the Minister, because this may be a difficult matter with which to deal. A moment ago, he talked about the distinction between a person in respect of whom no confiscation goes ahead because the vehicle was not his, nor was it a tainted gift to him. That must come within the same category. Yet he suggests that, under the provisions covering property obtained by unlawful conduct, the director would be entitled to invoke a wider test.

My mind went to clause 247, which we have not considered, under which property obtained through unlawful conduct is defined. A definition is provided in the notes on clauses, but it is difficult to extrapolate one from the clause itself. I read nothing in the notes on clause 247 to suggest that the definition of property obtained by unlawful conduct could have a wider meaning than that of a tainted gift.

Bob Ainsworth (Labour, Coventry North East)

There are different proceedings and different circumstances. It will not always be the case that property is a tainted gift. The car may belong to someone and it may not be possible to show that it was a benefit of crime under the part 2 regulations, yet the director may consider that under civil recovery proceedings, he can show that the car was the proceeds of crime. As the hon. Gentleman knows, the Secretary of State can issue guidance to the director. We should not rule that out absolutely. If we did, we could put ourselves in the embarrassing position, if a glaring opportunity arose for the civil recovery of the proceeds of crime, of having prevented it from being pursued.

Norman Baker (Liberal Democrat, Lewes)

I accept all that the Under-Secretary has said, but does he agree that after a prosecution has failed, it may not be appropriate to pursue civil proceedings? Will he issue a code of conduct or a guidance note that says to the director of the Assets Recovery Agency when it may not be appropriate to pursue civil proceedings?

Bob Ainsworth (Labour, Coventry North East)

I do not disagree with the hon. Gentleman. There will be many circumstances in which it is not appropriate to use civil recovery proceedings. I do not know whether it is necessary to lay that down in guidance at this point in the Bill, or whether we can allow the director discretion. A judgment will have to be made at the time. We consider that the measure is targeted. It will be aimed at the top end of criminality, where there are substantial proceeds of crime to be confiscated. No evidence or

intelligence suggests that there will not be many circumstances that will keep the director and the agency busy. Such cases will be complicated, so there will not be hundreds of them. It will take time and expertise to put them together. As the hon. Gentleman asks me to accept that there will be cases such as he describes, will he accept that on the odd occasion—they may be few and rare—it may be appropriate for the director to take such action, and that we should not prevent him from doing so?

Dominic Grieve (Conservative, Beaconsfield)

It has been an interesting debate, and I am grateful for the Minister's comments on both amendments. As I said at the outset, I believe that the issues arising on each are rather different.

Amendment No. 367 relates to an anxiety about unfairness, which was highlighted by the hon. Members for Redcar and for Lewes. I urge the Minister to consider giving an early assurance about a code of conduct being in force for circumstances in which a civil procedure might be used following an acquittal. I am worried about that, but as I said earlier, I can also envisage legitimate circumstances in which that discretion should continue to be with the director to allow him to bring civil proceedings.

Several comments have been made on the matter, and indeed I argued against myself in presenting my case, as I appreciated that there was an alternative way of considering it. However, I believe that some early reassurance would be helpful, especially if we are not to have to revisit the matter on Report. I accept that it may be difficult to tailor an amendment that does justice to the particular circumstances with which we are trying to deal, but if the Minister would consider providing that assurance, the Committee would be greatly helped, and the Bill could be improved.

I realise that we shall not vote immediately on amendment No. 356, but having listened to the Minister, I feel that I am likely to press it to a vote. The more I listened to him—I hope that he will forgive my saying this—the more worried I was about what we were setting up under the civil recovery procedure.

We shall have an opportunity to consider the matter further when we debate clause 247 stand part. I tabled no amendments to clause 247, because having read it I reached a conclusion about what property obtained through unlawful conduct amounted to. It did not tally with the Minister's interesting example in trying to differentiate civil recovery proceedings in respect of such property from confiscation proceedings. I appreciate that it is difficult sometimes, but I take his example and throw it back at him.

The Minister suggested that there might be circumstances in which a convicted defendant is taken through the confiscation proceedings but it cannot be shown that the motor vehicle in his possession, which belongs to him, is a tainted gift, his property or something that can be latched on to as a benefit. However, if I have understood him correctly, he takes the view that in such circumstances it would still be possible for the director, under civil recovery

proceedings, to claim that the property was obtained through unlawful conduct and can be seized from the defendant.

In the explanatory notes to clause 247, property obtained through unlawful conduct is defined:

''A person will obtain property through unlawful conduct if he obtains it:

— by the conduct—for example by stealing it, or by obtaining it by means of dealing in illicit drugs, or

— in return for the conduct—for example by being paid to commit murder or arson, or taking a bribe to give false evidence or corruptly award a contract.''

Reading those two passages in the explanatory notes, I am at a loss to understand how such property could have slipped through the confiscation proceedings with regard to benefit from general criminal conduct. I see that a note is winging its way to the Minister, so I look forward to being corrected on my assumptions. Either I have misunderstood clause 247 and what constitutes unlawful conduct, in which case I am worried, or I have not misunderstood, in which case the Minister's example was not a good one. I cannot even think of an example whereby a failure of the confiscation proceedings with regard to general criminal conduct could possibly lead to a civil recovery in relation to the same assets. The only example that I can think of is when there is a failed attempt to recover certain assets for particular criminal conduct, but there are nevertheless other assets that could be recovered under civil recovery.

Bob Ainsworth (Labour, Coventry North East)

The hon. Gentleman is very good at thinking on his feet and dancing on the head of a pin. I do not say that in a derogatory way.

Let us suppose that a particular individual is being pursued through criminal proceedings, and an assumption has been made of a criminal lifestyle, but the car in question is not the proceeds of his criminal conduct but the proceeds of another's criminal conduct. Does the hon. Gentleman not see that there might be opportunities under part 5 that do not exist under part 2?

Dominic Grieve (Conservative, Beaconsfield)

If I have understood the explanatory notes to clause 247 correctly, no. My reading of them is that the clause limits the definition of property obtained through unlawful conduct. The clause itself is rather more opaque. The explanation provided suggests that it must be obtained through the acquisitive activities of the individual or a payment for a crime. I was listening to the Minister when he opened the debate, and he gave me the impression—which may be correct, in which case I am worried—that property obtained through unlawful conduct could be anybody's property and that the definition was unrelated to any wrongdoing by the individual himself. How does that tie in with the explanation given to clause 247? I begin to think that if the Minister is right, the explanation given to clause 247 is wrong, and we will have to give serious consideration to the fact that we are widening the powers of civil recovery almost to the point of absurdity. When we come to clause 247, I shall give the Minister examples of the sort of property that would start to fall to be recovered, which will surprise people.

I remain unconvinced. In view of that, I intend to press amendment No. 356 to a vote when the time comes. Of course, it will have to be taken under clause 248, and by that stage we will have had time to consider clause 247, so it is possible that the Minister will have persuaded me, in the stand part debate on that clause, that I am wrong. At the moment, however, I rather doubt that. In the meantime, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 245 ordered to stand part of the Bill.

Clause 246 - ''Unlawful conduct''

Bob Ainsworth (Labour, Coventry North East)

I beg to move amendment No. 308, in page 145, line 26, after 'court', insert 'or sheriff'.

This is a minor amendment that will remedy a defect in the drafting of subsection (3). The clause applies to both civil recovery and cash forfeiture schemes. Under subsection (3),

''The court must decide on a balance of probabilities whether it is proved—

(a) that any matters alleged to constitute unlawful conduct have occurred, or

(b) that any person intended to use any cash in unlawful conduct.''

In the case of civil recovery proceedings, under chapter 2 of part 5, a court will decide whether the proceedings take place in England, Wales, Northern Ireland or Scotland. Proceedings will take place in the High Court or the Court of Session. However, in the case of cash forfeiture, proceedings in Scotland will take place before a sheriff. The decision as to whether it is proved on the balance of probabilities that any person intended to use any cash in unlawful conduct will therefore be taken not by a court in England, Wales or Northern Ireland, but by a sheriff in Scotland.

The amendment will ensure that the clause establishes that the requirement to reach a decision on the balance of probabilities is applied to both types of proceedings in all parts of the United Kingdom. It simply remedies a defect in the original drafting.

Dominic Grieve (Conservative, Beaconsfield)

I am a bit puzzled. I thought that the sheriff sat in court. I did not expect him to sit in some other forum. The need to insert 'or sheriff' struck me as odd, but perhaps that is something that I do not understand correctly about Scottish legal procedure. It did not occur to me that the decision would be taken by a sheriff sitting in his room or his bath.

Why do we need to say ''court or sheriff''? Why does ''court'' not cover a sheriff's court? Being a man with a suspicious mind, it immediately occurred to me that the decision could be an arbitrary administrative act, done in the sheriff's bath.

Boris Johnson (Conservative, Henley)

What?

Dominic Grieve (Conservative, Beaconsfield)

My hon. Friend expresses surprise, but he should remember that things such as ex parte injunctions can be granted by judges in their baths—indeed, that has been done.

Bob Ainsworth (Labour, Coventry North East)

How do you know?

Dominic Grieve (Conservative, Beaconsfield)

I have been involved in cases in which injunctions have been granted by judges over the telephone, as is now normally done. I know that, in the past, injunctions have been granted by judges in their sitting rooms, and by passing notes out from their bathrooms.

Bob Ainsworth (Labour, Coventry North East)

I am convinced that this is just a matter of terminology. Elsewhere, the Bill refers to a sheriff, and the amendment simply brings the provision in line with the rest of the Bill. If there is anything more sinister or far-reaching about the amendment, I promise that I shall report back to the hon. Gentleman and the rest of the Committee.

Amendment agreed to.

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 366, in page 145, line 26, leave out

'on a balance of probabilities',

and insert

'to the standard applicable in civil proceedings.'.

The amendment brings us to one of the nub issues about civil recovery proceedings. We touched on this matter previously in relation to confiscation, but it needs to be considered afresh, because this is a separate recovery system. The balance of probabilities is proposed as the test for proving whether matters that are alleged to constitute unlawful conduct have occurred. I would prefer the test to be the standard applicable in civil proceedings. As has been discussed by the Committee, a balance of probabilities is exactly what it says: it defines a particular test. However, it is common knowledge that over time—and in particular over the past 30 years—the test in civil proceedings has been varied to cater for the gravity of the proceedings and their consequences. Therefore, whereas in ordinary litigation between individuals for, let us say, negligence, the test is the balance of probabilities and nothing else, in cases where allegations of criminality are made, or where there are proceedings for contempt, the test will be higher, and the judge will have to be satisfied, within the civil standard, that it is right for him to reach a particular decision.

I want that flexibility to be preserved. This is a serious matter. The state, as represented by the director, will be given the power to bring proceedings that lead to the restraining of an individual's assets, regardless of the fact that there will have been no civil tort or contractual dispute between the state and the individual. That is draconian legislation, and it will be discussed again.

The state will also be able to bring proceedings that will ultimately lead to the confiscation, or removal, of those assets—the word ''confiscation'' is not used, but that is what we are talking about. The state will also be able to force an individual to go through a very public process, that will reveal his personal finances to the public—unless we do something about preventing that

from happening, and I will refer to that later—and may ruin his reputation in the process, because the proceedings contain the implication that he has obtained property through unlawful conduct. We should not underestimate the effect on an individual's reputation: it will be wholly different from the effect of losing a negligence action or a contractual dispute, as those are matters of routine. Such matters do not usually touch on an individual's integrity, unless the judge has to decide whether one of the parties is lying.

I am unhappy that the proposed test is the balance of probabilities. The test should be the civil standard, and as the procedure develops, the judiciary should be allowed the flexibility to ensure that justice can be done. I urge the Committee to consider the amendment carefully, because it will not prevent recovery from taking place in cases where it should, but it might prevent recovery from taking place in borderline cases, where a judge is worried that, although there might be strong evidence, there might also be a risk of injustice. The civil test allows him that flexibility and margin, which will ensure that confiscations or recoveries that take place under the civil procedure are accepted and that there is not a growing clamour from individuals saying that they have been unfairly treated.

Nick Hawkins (Conservative, Surrey Heath)

I want to reinforce what my hon. Friend ably argued. It is important that whenever these issues are dealt with by fresh legislation we use the most appropriate and most recently judicially approved method of setting things out. For reasons that my hon. Friend the Member for Beaconsfield set out, if we kept the Government's original wording, there may be problems. It would be better if we used the wording in the amendment for the reasons that he gave.

Paul Stinchcombe (Labour, Wellingborough)

I am slightly concerned about the attitude of the loyal Opposition that is displayed through the amendment. When it suits them, they seem to argue for discretion to be exercised and vested in the High Court and judges. However, on numerous other occasions—in Committee and at other stages—they want Parliament to assert its sovereign right to establish thresholds that are considered appropriate. In this amendment, they say that the court should establish the threshold of evidential proof that is appropriate to meet the case. The range would be wide. As I understand it, it would range from the balance of probabilities all the way up to the criminal standard in certain circumstances. Is that abdication of our sovereign rights, as politicians with a mandate, appropriate? In circumstances such as this, when we commit ourselves to legislation that will allow civil recovery of the proceeds of unlawful conduct, should we not decide for ourselves and tell the court the appropriate standard to which we wish to work? We would make a choice—a simple election.

Nick Hawkins (Conservative, Surrey Heath)

I understand entirely the hon. Gentleman's point. I cannot remember whether he served on Bill Committees in the last Parliament that

related to criminal justice and civil justice, but I know that he and I have served together on various Bill Committees. He may recall that his Government used the phrase in the amendment in various Bills that were introduced during the 1997-2001 Parliament.

My brief contribution was to point out that the phrase

''the standard applicable in civil proceedings'',

which gives the court flexibility, has been used by his Government in recent Bills that have been enacted, so the problem was not as large in those Acts as the hon. Gentleman suggests that it is in this one.

John McWilliam (Labour, Blaydon)

Order. I have told people off all afternoon for long interventions, and that was another good—or bad—example.

Paul Stinchcombe (Labour, Wellingborough)

I accept what the hon. Gentleman said. I am sure that he is right that the terminology was invoked by Parliament in certain legislation and that it would have the impact that was ascribed to it.

I served on the Committee that considered the Bill that was enacted as the Crime and Disorder Act 1998. I asked the other week whether hearsay evidence is admissible, and the parliamentary answer was that it is. The civil standard of proof is a flexible standard, so the front, side and indeed back doors can be used. We should decide where the door should be and how it should be opened for provisions in every Bill that we consider on its merits. When we assume that prerogative, we must face up to the hard question of which threshold we want in a Bill.

I ascribe fundamental importance to this Bill, and I would use the lower threshold at this juncture. I say that for reasons of principle. It is flagship legislation, significant for the reasons stated by many hon. Members, and not least for those stated by my hon. Friend the Member for Glasgow, Pollok: in our country today, communities have been completely destroyed or gravely damaged by criminals who flaunt the proceeds of their wealth in ways that we can no longer tolerate but are currently largely powerless to affect. I recall talking to an hon. Gentleman who described a conversation with someone on an estate in his constituency. He told that person to give up crime because he had talent and could make something of his life. The individual responded that he would need a job that would pay for Gucci shoes and a Boss suit in an afternoon, because that was what his current activities could provide.

That is the position that we face and the threat we must confront. We are entitled and right to choose the lowest level of proof in this instance. I am mindful of the civil liberties implications of such decisions, but this is an introductory chapter to part 5, which includes discretions. Clause 245 has an enabling provision that introduces that chapter, so it is proper to have a low threshold, knowing that the appropriate authority has the chance to exercise discretion in many cases. Other clauses ensure that appropriate discretions and protections are contained in the legislation.

It is right that we, as legislators, make our choice. It is right to choose the lower burden, but we must also diligently take care in considering the main provisions to ensure that appropriate protections prevent injustice.

Vera Baird (Labour, Redcar)

The way in which a judge considers such issues raises serious questions. I have to differ from my hon. Friend. He cited an example of inner-city criminals—there are plenty in Redcar and I do not like them one bit. I do not think that the graver the crime, the lower the standard of proof required. I do not agree that if the public mischief is great, we cannot afford to give people the benefit of the doubt. I worry about such a line of thinking.

Paul Stinchcombe (Labour, Wellingborough)

I am not saying that. When we deal with those serious matters, we should not be afraid to have a low level of proof applied in triggering provisions. Different protections can meet the needs of a particular case.

Vera Baird (Labour, Redcar)

I accept that my hon. Friend has a point. Several steps must be taken before the full process of finding against the individual is complete. However, the very commencement of proceedings against an individual is capable of having a draconian effect. It makes available much private information, such as financial particulars. It sets out in the public theatre details of how such individuals live their lives.

It seems to me that one has to be careful, even at this initial stage, not to bind the judiciary to a precise standard of proof that is more usually applicable between equal parties in the civil courts, which is not the case here. It follows from what the Minister said that such proceedings are likely only to be brought against somebody who is not guilty—that is, cannot be proved to be guilty—and who will never be proved guilty. Therefore, the individual will, for all forensic purposes, be not guilty at the outset. When earlier provisions were debated, the people under discussion were those who had already been found guilty of a crime. Consequently, the shift was less exceptionable. The advantage of a more flexible standard is that it builds in a sliding scale, which is not a discretion exercised in an undisciplined way but an appreciation, in a sense, that—contrary to what, perhaps wrongly, I alleged that my hon. Friend the Member for Wellingborough (Mr. Stinchcombe) was saying—the graver the allegation, the more serious will be the consequences, not least to reputation, Certainly, the practical consequences will be more serious, so a more serious cast of mind will need to be applied to those grave allegations than to lesser ones.

In ordinary cases, the balance of probabilities—which is just what that phrase implies—is the appropriate test. I repeat that such cases are frequently between relatively well matched individuals. However, even in such a situation, in which the issue between the two parties—perhaps a bank and a business—may be about recovery of the amount on a cheque, once there is an allegation on one side or the other of fraud, the nature of the judicial process changes: it becomes a stage at which a finding that is quasi-criminal will have to be made. Consequently, the judge will

automatically ratchet up a little the way in which he considers whether the allegation is proved to his satisfaction. I am not talking about the full criminal burden of proof, but a slightly higher test, which is precautionary and cautionary in the judge's mind.

That also works in ways that I do not like—I am trying to make a balanced contribution to the debate—and it applies, too, in domestic violence injunction cases. As a feminist, I am wholly on the side of readily finding that men are prepared to be violent. However, in that situation, judges will say that it is a civil proceeding, which is usually, of course, brought by a woman against a man, and the allegation may be only psychological damage, bad behaviour or harassment, and not quite criminal. However, if it becomes an allegation of serious violence, the judge will ratchet up his approach, step back and say that, in another situation, this matter would be tried on the criminal burden of proof by a jury of 12 people, so he will take it a little more seriously because he has to make an analogous decision to the one that the jury would make, although the consequences are different.

The problem is also presented in cases that concern contact with abusive parents—not parents who swear, but those who have committed abusive acts against a child, which are also fairly appalling allegations to level. A judge in civil proceedings will take a step back and will look with more care at the evidence about those allegations. Frequently, such evidence is difficult to bring because a child is not a satisfactory witness. Women's Aid and other organisations that support children and wives in such situations would say that the trouble is that once we bring in a dangerous allegation, the judge is far less likely to stop contact because he will apply a higher standard of proof. That is a source of difficulty, so contact goes on. It has implicit difficulties, for both the good and the bad.

Paul Stinchcombe (Labour, Wellingborough)

I thank my hon. Friend for her interesting and thought-provoking contribution, and ask a question for clarification. Is she arguing for a higher but consistent evidential threshold to be applied on any kind of unlawful conduct that triggers the provision, or for a differential threshold that depends on the type and seriousness of the unlawful conduct in question?

Vera Baird (Labour, Redcar)

My hon. Friend makes an equally thought-provoking and positive contribution, and it is a good question. Are we looking for something that is set automatically a step above the balance of probabilities because it will almost always be a decision that involves a finding of criminality? I have taken my hon. Friend's example of somebody else's criminal conduct, but most of the time it will involve a finding of criminal conduct and so appear appropriate for the judge to caution himself against simply relying on the balance of probabilities. The existence of the example that the Minister gave in an earlier debate—that it could be somebody else's property—perhaps suffices to show that there is the flexibility, but my hon. Friend's point was good.

I am less enamoured by the set of words in the amendment than my contribution has so far suggested. The balance of probabilities is a firm phrase, and it would be difficult to get away from applying that officially, unless a judge—the Committee will have to consider whether this will not follow—who, because of his training and practice, will in every other case apply a sliding scale, is unable not to do so in such a case. In which case, perhaps we are all arguing about nothing. However, it is a slightly artificial position to stick in ''the balance of probabilities'', when one understands that that might not be the test that is applied. I can see that I have puzzled the hon. Member for Spectator, South (Mr. Johnson), and I apologise.

Boris Johnson (Conservative, Henley)

I am puzzled, but perhaps not as puzzled as some on the Government Front Bench. It has been a pleasure to look at the marmoreal impassiveness of the Whip and the sterling impression that the Minister has given of being in deep slumber while the hon. Lady has rebelled from the text of the Bill and then found a snaking and labyrinthine way back towards supporting it. I do not know where she will end up, but I thought for a minute that she was going to agree with my hon. Friend the Member for Beaconsfield in his comment that it would be good not to fetter the judiciary. I thought that she was on the verge of agreeing, which is why a momentary frown of puzzlement crossed my brow. If she supports the amendment, I would be jolly grateful if she got to the point.

John McWilliam (Labour, Blaydon)

Order. The hon. Lady might have more chance to get to the point if interventions were kept short.

The rest of the debate is in Hansard.