Proceeds of Crime Bill

Public Bill Committee, 18 December 2001.

Standing Committee B

Schedule 3

Bob Ainsworth (Labour, Coventry North East)

I beg to move amendment No. 309, in page 262, line 20, leave out from 'may' to end of line 22 and insert

'not be used in evidence against him in criminal proceedings.

(3A) Sub-paragraph (3) does not apply—'.

John McWilliam (Labour, Blaydon)

With this it will be convenient to take the following:

Amendment No. 359, in page 262, line 27, leave out sub-paragraph (3)(c).

Amendment No. 360, in page 262, line 29, leave out sub-paragraph (4).

Government amendment No. 310.

Bob Ainsworth (Labour, Coventry North East)

Amendments Nos. 309 and 310 alter the provisions giving protection against self-incrimination under paragraph 2, which gives the interim receiver or administrator the power to obtain information or to require a person to answer a question. It is a significant power and may result in the person providing evidence against himself. Sub-paragraph (3) therefore makes provision as to the circumstances in which compelled answers can be used in legal proceedings.

As the schedule is currently drafted, compelled answers may be used only in civil recovery proceedings in a prosecution for perjury or for some other offence if, in giving evidence, the defendant makes a statement inconsistent with that, and the statement arises out of the defence case. We are clear in our mind that an answer should not be used in relation to criminal proceedings, except as described under the schedule.

We consider, however, that the provision in relation to the use of compelled answers in civil proceedings is currently too narrow. Sub-paragraph (3) will allow an answer to be used in relation to civil recovery proceedings, but not in any other civil proceedings. That is too restrictive. The restrictions under paragraph 2 of the schedule in relation to criminal proceedings reflect the Strasbourg case of Saunders v. United Kingdom, which has no relevance to civil proceedings. We therefore see no reason why an answer given in response to the exercise of the power under paragraph 2 should not be available for all civil proceedings.

Amendment No. 309 establishes that an answer may not be used in criminal proceedings except as provided for under the schedule. There is no change to the conditions under which it may be used. There is therefore no change to the position in criminal proceedings. The effect of the amendment is, however, that the answer can be used in all civil proceedings, not only in civil recovery proceedings. The amended provision will also be consistent with the self-incrimination provisions under clause 349, which relate to the use of statements made under disclosure orders.

Amendment No. 310 is consequential on amendment No. 309.

Dominic Grieve (Conservative, Beaconsfield)

Given that the Minister approaches the matter from one direction while I approach it from another, our amendments touch on different issues. The hon. Gentleman is attempting to widen the use and scope of the evidence that has been given effectively under compulsion in civil proceedings. Our amendments, particularly No. 359, were tabled to see whether we should narrow the scope under which the information provided could be used in criminal proceedings. Amendment No. 360 is more of a probing amendment under which we want to explore the intention behind sub-paragraph (4), because we consider that it is slightly convoluted. I look forward to hearing the Minister's response.

I will deal first with the Minister's amendments. I understand that the reasoning behind the provision is to widen the replies and to allow their use in relation to civil procedures generally. However, given the unusual nature of the power, the clause should not be maintained as it stands. I shall be interested to hear from the hon. Gentleman how the intention to depart from the current practice was derived. There is currently a restriction on allowing such information to be adduced in civil proceedings. Is he seeking to widen the powers, when we should be going in the other direction? That said, if he can persuade me that there are good and sufficient reasons why such information—which is effectively supplied under compulsion for a specific purpose—should then be made available in civil litigation, I shall not press the amendment to a Division.

The matter raises other issues. When the receiver is carrying out the receiving, full proceedings may not have taken place. Indeed, the information supplied to the receiver will have been stored and may not lead to a successful civil recovery. In subsequent civil proceedings, individuals—I assume that, in respect of civil litigation, we are talking about litigation between individuals and corporations—may seek access to material that the receiver has obtained and held confidentially. How would that information be obtained from the receiver? Does the civil litigant make an application to the court and say, ''I believe that, in the course of an investigation, the receiver asked questions of an individual to which replies were given. May I have access to those replies?'' What are the criteria, in respect of confidentiality, that would be applied by the receiver and by the court to make that information available?

The Minister put forward a broad proposition. It should, in principle, be possible for information previously supplied to the receiver to be made available in civil litigation. How, in practice, would that be carried out? I worry about that. It would have been much simpler to retain the confidentiality provision, especially because the information that the receiver is obtaining is not necessarily linked to any wrongdoing by that individual. At the time that the receiver obtains the information, the wrongdoing will not have been proved.

I shall return to the Government amendments when I have heard the Minister's reply. I shall now discuss my amendments. In respect of the criminal law, is it correct that we should allow evidence to be adduced when, in giving evidence in the prosecution of some other offence, the defendant made a statement that was inconsistent with a statement that he had previously made to the receiver? In my experience, there are instances when statements or signed documents that were prepared during litigation were not made available to the court in criminal proceedings, even though they showed a contradiction.

I recall a case that I was prosecuting, in which a defendant in the witness box gave certain information about his finances that sounded extremely odd. When I looked at his legal aid application form, I found that he had signed a document that gave completely contradictory information. As the rules stood, even though that document was available to the court and I had seen it, I was not allowed to cross-examine the defendant about his legal aid application form because of its confidential nature. The principle is well established that, in some circumstances, even if a defendant in the witness box makes a statement that can be contradicted by other evidence that is available, it may not be possible to consider that evidence because of its nature in the circumstances in which it was originally supplied.

Nick Hawkins (Conservative, Surrey Heath)

I am listening carefully to my hon. Friend. What he has just said about his professional experience reminds me of a not dissimilar case that further reinforces his point. The case involved not me but a colleague in chambers, who was in the embarrassing position of having been instructed by a client who had paid for solicitors and counsel privately, but, unbeknown to my colleague, had separately submitted a legal aid form with completely contradictory information about his finances. The matter could be examined only because the judge became aware of it. As my hon. Friend knows, if a judge becomes aware of a clear inconsistency relating to legal aid, he may make entirely separate inquiries. As a result, the solicitors and counsel had to withdraw from representing the client and the entire case had to be stopped and started again with fresh counsel, because the defendant had plainly deceived the legal aid authorities. However, it was not possible for any of the counsel to cross-examine, just as my hon. Friend describes.

John McWilliam (Labour, Blaydon)

Order. I remind hon. Members that interventions should be just that. That one was too long.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to my hon. Friend the Member for Surrey Heath (Mr. Hawkins) for his intervention and for developing it at length to explain his recollection of a case that tallies exactly with my experience.

In my experience, it is not impossible or, indeed, unusual for material evidence to be available at a criminal trial on which the prosecution or defence counsel would not be allowed to rely even though it shows a material inconsistency with what a defendant has said in the course of giving evidence in the witness box. I wonder whether we should allow such evidence to be given in cross-examination.

As I said, amendment No. 360 is a probing amendment. I should like confirmation from the Minister that the wording provides, as I believe, merely that the defendant himself must adduce the evidence that can subsequently be rebutted. I note that because of the use of the phrase ''on his behalf''. Evidence can be submitted on someone's behalf in several ways. One is by another witness for the defence saying something in the witness box that is materially inconsistent with a document that the defendant has provided or a statement that the defendant has made to the receiver. Are such circumstances intended to be covered, or is the intention merely to cover circumstances in which the defendant makes a statement in the witness box that is inconsistent with a statement that he has made previously to the receiver, or—a second possibility—circumstances in which his counsel makes on his behalf a formal admission that is inconsistent with evidence given to the receiver? As long as only those two categories are involved, I am content with sub-paragraph (4) as it stands. If, however, the provision is being widened in scope to include evidence called on behalf of the defendant that is inconsistent with what the defendant has said to the receiver, I would have serious objections, for obvious reasons, as that would not be what the defendant himself said. I wait to hear from the Minister about the arguments that I have made about his amendments, and I hope that he will provide reassurance and comment on mine.

Bob Ainsworth (Labour, Coventry North East)

As the hon. Gentleman explained, if the amendments were accepted, under the powers, answers could be used only in a prosecution for perjury. It would no longer be possible to use an answer in other criminal proceedings if the person who gave the answer made a statement inconsistent with it when giving evidence and the defence brought up a matter relating to the answer.

The schedule makes it clear that self-incriminating evidence given under the receiver's coercive powers will not be admissible in criminal proceedings other than in certain restricted circumstances, which are set out in sub-paragraphs (3)(b) and (c) and sub-paragraph (4). These are standard exceptions to the rule against the admissibility of self-incriminating material.

I listened to what the hon. Gentleman and the hon. Member for Surrey Heath said about the circumstances that might arise in court, but I am told that the provision does not break new ground or establish a new principle. We want to provide protection against self-incrimination, but we do not want that protection to be abused.

With regard to amendment No. 360, the hon. Member for Beaconsfield (Mr. Grieve) is right to say that paragraph 2(4) is intended to apply to the defendant and the defendant's counsel, and not to a witness who could be perceived to speak on behalf of the defendant. We want the provision to cover what is said by the defendant and those who represent him in court. Sub-paragraph (3)(b) and (c) and sub-paragraph (4) contain standard exceptions to the rule on self-incriminatory material.

Dominic Grieve (Conservative, Beaconsfield)

I just want to be certain that paragraph 2(4) relates to what the defendant—or counsel acting on his behalf—says by way of formal admission, and that the defendant cannot be called in support of the defence. There is a distinction. It is what is said either with the defendant's mouth or on his authority that should be placed before the court, rather than what is said by a witness who is called on behalf of the defence. I do not interpret ''on his behalf'' as referring to such a witness.

Bob Ainsworth (Labour, Coventry North East)

The provisions are not intended to cover the latter category, in which witnesses make statements that can be presumed to be on the defendant's behalf. They cover what the defendant and his representatives say. That clearly and absolutely deals with the issue that the hon. Gentleman raised.

I reassure the hon. Gentleman that these are standard proceedings, not something that we have invented. For example, schedule 3 to the Youth Justice and Criminal Evidence Act 1999 includes similar provisions. The provisions reflect the decision of the European Court of Human Rights on the question of self-incrimination in Saunders v. United Kingdom. The hon. Gentleman's amendments would further restrict the circumstances in which the information could be used in criminal proceedings by deleting sub-paragraphs (3)(c) and (4). That would mean that information given in an answer could be used in a prosecution for perjury under sub-paragraph (3)(b), but not in any other criminal proceedings.

Sub-paragraph (3)(c) would allow an answer to be used if a person made a statement during a prosecution for an offence inconsistent with an answer that he gave to the interim receiver or administrator. Sub-paragraph (4) qualifies that, so that the answer may be used in the proceedings against that person only if evidence is adduced or a question is asked relating to an answer made by that person or those acting on his behalf—that is, those who represent him in the court proceedings. We believe that an answer should be available for use in criminal proceedings in the circumstances described in sub-paragraphs (3)(c) and (4). That will help to discourage people from changing their story to suit the circumstances. We see no reason why defendants should be free to do so.

The hon. Gentleman talked about his concern about the widening that our amendments propose, and suggested that we should leave matters as they are. The fundamental issue is that we protect people against the requirement to self-incriminate with regard to criminal proceedings. If our amendments were not made, any subsequent civil proceedings that are likely to be brought—by not the Government, but other individuals, such as victims—would not have access to or be able to use evidence that had been produced in proceedings against the defendant.

The hon. Gentleman asks how on earth the information would be discovered in the first place. Clause 258 gives a number of instances in which the interim receiver must inform not only the enforcement authority but the courts and the defendant. If the hon. Gentleman ploughs through the whole clause he will see that, by and large, the interim receiver must inform everyone concerned about everything that he finds at the time that he finds it. The interim receiver will not be forced to disclose information to a subsequent litigant. The information will have been disclosed at the time. If we do not widen the ability to use that information, it will be available on the record at the time of the case against the defendant, but a subsequent litigant would not be able to use it for his or her own case.

We do not believe that the amendment's proposal to allow other civil litigants to use information that has been obtained is a threat to self-incrimination. It would be strange and unnecessarily restrictive to prevent such litigants from doing so.

Dominic Grieve (Conservative, Beaconsfield)

I have just glanced at clause 258, which is about reporting. I appreciate that that shows that the receiver has a duty to report information that he obtains to the court and the enforcement authority. I do not, however, follow how that information will be available to a personal or corporate litigant who decides to bring an action against the same person whom the receiver investigates. In reality, it is possible that during and before the conclusion of the proceedings, the information might come to light. However, it is equally possible that the information would never come to light, although it would be available to the receiver. I suspect that the operation would be slightly hit and miss.

Bob Ainsworth (Labour, Coventry North East)

I am not aware of a requirement in the Bill that obliges the interim receiver to make available to subsequent litigants information that he has provided to the court.

Dominic Grieve (Conservative, Beaconsfield)

I go further. I tell the Minister that it would be a serious breach of the receiver's duty if he made material that he obtains under his powers during the receivership available to the public. That is why I raised the issue. Unless the receivership ends in recovery proceedings, in which case the matter will be very public and information will come to light, the material is unlikely ever to see the light of day unless there is a serious breach of confidentiality. I foresee fishing expeditions, in which litigants try to obtain access to the information that the receiver obtained confidentially. That raises important issues, including potential Human Rights Act issues.

Bob Ainsworth (Labour, Coventry North East)

The hon. Gentleman is absolutely right. There would not be the ability subsequently to reveal information that was not revealed at the time. At the time, the interim receiver would have been obliged to serve a copy of his report—and any subsequent reports—not only to the court and the defendant, but to anyone whom he is aware has been affected by the confiscation procedures. Therefore, the information might be known to victims who subsequently wish to pursue a case through civil proceedings. In those circumstances, we are, in effect, allowing them to use the information that they have gained from the report that was made at that time. However, we are not allowing them—or other people who were unaffected by the case—subsequently to interrogate the interim receiver, or to go on fishing expeditions. That is what the hon. Gentleman is worried about. It will not be allowed—but potential victims will be able to make use of the information that is reported.

Dominic Grieve (Conservative, Beaconsfield)

The Minister has provided me with plenty of reassurance.

With regard to civil recovery, situations might arise in which there is a victim, in the sense that there is an individual who has lost an asset because it has been taken by the person against whom the civil recovery proceedings have been brought. Those proceedings might alert the victim to the discovery of that asset, and he might be grateful to be able to make use of the information that is supplied by the receiver. With regard to such circumstances, I understand the thrust of the Minister's argument.

I wish to explain, for the record, the problem that I identified—although it does not alter my view that my party should not oppose the amendment. I suspect that, when such a proceeding is brought, there will be a good chance that a large number of individuals will hover on the edge of the case who might not have lost an asset to the individual concerned, but who might believe that they have rights of action against that individual for a host of reasons—such as a tortious grievance, or a breach of contract. There might not be an identifiable asset that belongs to them, but they might believe that they have a right to sue for damages, in one form or another. They would, therefore, be interested in the material that the receiver obtains as he conducts the compulsory procedure, because although one can serve interrogatories—and there is a degree of compulsion involved in that, with regard to pleadings and civil litigation—it is not normally possible to sit someone down and submit him to a close examination, over a number of hours, in order to learn the details of his assets and trawl through them.

With regard to such cases, I suspect that there might be many interested people, and the provision that the Minister is introducing would make it possible for them to start expressing an interest to the court about the matter, even though they might not have been provided by the receiver with direct information. For example, they might say, ''We have discovered your Rembrandt painting—or a painting that might be your Rembrandt—in his cellar.'' However, although the provision might result in more complicated arguments than have been predicted, I do not find exception to the underlying principle, because in civil litigation—unlike criminal cases—there are rules that require people to answer questions because, if they do not, they will lose an action. Therefore, I will not oppose the amendment, although it might prove to be more complex than has been envisaged.

I shall now discuss my amendments. The Minister has provided me with reassurance about amendment No. 360, and I will not seek to press it. In respect of amendment No. 358, I am also grateful to the Minister. I see that there are arguments, in this instance, for that material to be made available, if it is something that comes directly from the defendant's mouth in the witness box, which is clearly contradicted by earlier statements that he has made to the receiver during his inquiries.

John McWilliam (Labour, Blaydon)

Order. I remind Committee members that the use of the word ''you'' refers to me. I reassure the Committee that not only do I not have a Rembrandt or anything that looks like one, but I do not even have a cellar. I also note that there is a murmur of conversation in the Committee Room, which is disturbing when I am trying to concentrate on what a Member is saying. Hon. Members who want to have a conversation should go outside to have it.

Amendment agreed to.

Amendment made: No. 310, in page 262, line 29, leave out '(3)(c)' and insert '(3A)(c)'.—[Mr. Bob Ainsworth.]

Nick Hawkins (Conservative, Surrey Heath)

I beg to move amendment No. 361, in page 262, line 35, after 'Power', insert

'with the prior authority of the court,'.

It is a pleasure to be under your chairmanship again, Mr. McWilliam. I was going to welcome back the hon. Member for Glasgow, Pollok (Mr. Davidson), because we missed him last week, but he has temporarily evaporated. No doubt he will return from the Corridor outside shortly, and we shall have the benefit of his trenchant views again.

Amendment No. 361 is not probing. We think that this is an extremely serious matter. My hon. Friend the Member for Beaconsfield and I, and other Opposition Members, were surprised that a Labour Government should suggest something as stark as the unfettered power in paragraph 3 of schedule 3. This is the same Labour party that used to make such an enormous fuss about stop-and-search powers and related issues, year after year, when we were in government and the Labour party were in opposition. My hon. Friends and I constantly heard Labour Members who are now on the Government Benches say that it was improper for any organ of the state, any part of the police, or any part of the prosecuting authorities to have any kind of unfettered powers. However, in paragraph 3 of schedule 3, the Labour Government are proposing draconian powers to

''enter any premises in the United Kingdom, and . . . take any of the following steps . . . to carry out a search for or inspection of anything described in the order . . . to make or obtain a copy, photograph or other record of anything so described . . . to remove anything which he is required to take possession of in pursuance of the order or which may be required as evidence in the proceedings under Chapter 2 of Part 5.''

Finally, the provision is made even wider:

''The order may describe anything generally, whether by reference to a class or otherwise.''

Anyone can see that those are astonishingly wide powers. It would be sensible and constitutionally important to introduce a safeguard by stipulating that those incredibly wide powers, which, in certain circumstances, may be necessary when dealing with the Mr. Bigs of this world—I should make it clear that we are not trying to water down the Bill, before any Labour Member accuses us of that—be introduced only with the prior authority of the court. If the Minister is not prepared to accept the need for such a safeguard, we hope that he will reflect seriously, with his colleagues and advisers, on whether the Government will table our amendment or a similar one on Report or in another place. The reasons for the gravity of our concerns will be understood. It is not right for any organ of the state to have unfettered powers—

Stephen Hesford (Labour, Wirral West)

Will the hon. Gentleman help me on this point? What is the difference in principle between exercise under paragraph 1 on seizure and paragraph 2 on information, which Conservative Members have not sought to amend, and exercise under paragraph 3? In effect, paragraph 3 simply exercises that which is already set out in paragraph 1.

Nick Hawkins (Conservative, Surrey Heath)

I find the hon. Gentleman's intervention somewhat surprising. He may not agree with other Conservative Members and me that the idea that an Englishman's home is his castle is fundamentally important—that phrase has been hallowed through the years. Paragraph 3 refers to the power to break into a person's private property. We are not saying that there should not be safeguards—indeed, my hon. Friend the Member for Beaconsfield has sought to introduce safeguards, and has received reassurance from the Minister. Unlike the previous paragraphs in schedule 3, in relation to which the Minister was able to offer reassurance, thereby avoiding the need to press our amendments to a vote, the words of paragraph 3 are so stark and draconian that I defy any hon. Member in the Committee to describe them otherwise.

British citizens need protection. In any organisation, unfortunately, mistakes will be made. However careful the authorities are—and I am sure that they will try to ensure that they enter only properties that are appropriate—they will occasionally get it wrong. Sadly, and sometimes with the most appalling results, prosecuting and police authorities have got things wrong in the past. The case that springs most urgently to mind of such catastrophic error was of a person who was being kept under surveillance, and whom a police firearms unit supposed to be a serious criminal. In the end, however, it turned out that they had got the wrong man, but they found that out only after the wrong man had been shot and suffered potentially life-threatening wounds from police bullets.

Stephen Hesford indicated assent.

Nick Hawkins (Conservative, Surrey Heath)

I see that the hon. Member for Wirral, West (Stephen Hesford) nods, so perhaps he remembers that case. Sadly, with the best will in the world, prosecuting authorities can get these things wrong.

Paul Stinchcombe (Labour, Wellingborough)

How does the hon. Gentleman's amendment fit with the provision in clause 260(1), which states:

''An interim administration order may authorise or require the interim administrator . . . to exercise any of the powers mentioned in Schedule 3''?

I do not necessarily ask the hon. Gentleman to deal with that point immediately, but there may be a dovetailing between the amendment and an existing provision in the Bill. Will the hon. Gentleman clarify how his amendment will bite on it, if at all?

Nick Hawkins (Conservative, Surrey Heath)

There are two answers to the hon. Gentleman's point. First, we have not yet reached clause 260, and it would not be in order to have this debate again—you would rightly stop us, Mr. McWilliam. Therefore, this is the appropriate time to raise the issue. Secondly, the wording of clause 260(1)(a)—I accept that the hon. Gentleman asks a genuine question, and I have considered the matter—is

''to exercise any of the powers mentioned in Schedule 3''.

Therefore, we need to ensure that the schedule 3 powers are only those that are appropriate. We could, of course, introduce the same type of safeguard into clause 260(1). We could table an amendment stating that ''an interim administration order may only with the prior authority of the court authorise or require the interim administrator'', which would have the same effect. However, our business dictates that we discuss schedule 3 before clause 260, so it is important to introduce the safeguard at this point. I entirely accept that there may be other ways of skinning a cat, and better ways of drafting such an amendment. If a Minister either here or in another place said that although the Government accepted the principle of our amendment there was a better way in which to insert such a safeguard, my hon. Friend the Member for Beaconsfield and I might be happy with such a response. We are not saying that our drafting is necessarily perfect, but we would be uncomfortable if the Bill were enacted without the incorporation of a safeguard into such a draconian proposal.

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

The hon. Gentleman has confused me. He referred to clause 260, which relates to Scotland.

Nick Hawkins (Conservative, Surrey Heath)

I did so only because I was tempted down that road by the hon. Member for Wellingborough (Mr. Stinchcombe).

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

Yes, but the hon. Gentleman went down it.

Dominic Grieve (Conservative, Beaconsfield)

There is a similar clause that relates to England.

Nick Hawkins (Conservative, Surrey Heath)

My hon. Friend says that a similar clause relates to England.

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

You can see why the judge fell asleep.

Nick Hawkins (Conservative, Surrey Heath)

I do not think that I have ever fallen asleep in court.

John McWilliam (Labour, Blaydon)

Order. I am not asleep. That principle has already been dealt with under clause 252.

Nick Hawkins (Conservative, Surrey Heath)

I give way to my hon. Friend the Member for Beaconsfield.

Dominic Grieve (Conservative, Beaconsfield)

I was about to say to my hon. Friend that the hon. Member for Wellingborough referred to the principle under clause 260, which applies to Scotland. However, clause 252 is an identical provision and applies to England and Wales.

Nick Hawkins (Conservative, Surrey Heath)

I am grateful to my hon. Friend. I am sorry that I was tempted down an inadvertent road by the hon. Member for Wellingborough. The principle remains the same. We need to insert a safeguard into schedule 3, because clause 252 refers also to that schedule.

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

Yes; we have dealt with that.

Nick Hawkins (Conservative, Surrey Heath)

Yes, but we are dealing with the matter now because schedule 3 is the appropriate place to insert the safeguard. The terms of that schedule are draconian. If the Under-Secretary were to say that the Government would insert the safeguard not into the schedule, but into clause 252, that would be fine by us. The powers are incredibly draconian; no Labour Member would dare to claim that they are not. A safeguard is needed. I am sure that other Conservative Members will want to reinforce that argument.

Dominic Grieve (Conservative, Beaconsfield)

I share the concern of my hon. Friend the Member for Surrey Heath about the extent of the powers. It is not that I think it wrong that the receiver should be able to search a property in the United Kingdom or that I believe that the powers under the schedule should be circumscribed in some way. It should be necessary, however, before a receiver takes such action, for him to tell the court that appointed him that he intends to enter premises, explain the reason why and gain the court's approval for the individual instances when he takes such action.

The Committee may remember the current powers. If my house is burgled and my property is taken eight doors down the road, and I see the burglar disappearing through the door, I have no right to kick down the door to gain entry to recover my property. I must call on the services of a police officer to attend the scene and to exercise his powers to recover such property. If there were a sufficiently long interval for the causal chain to be broken, even the police officer could not enter the premises to recover the property; he would almost certainly have to obtain a search warrant from a magistrate.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I am not without sympathy with the hon. Gentleman's argument, but we are dealing with the execution of an order of court that has already been granted. I offer him another example: if I obtained a decree against the hon. Gentleman in court, I could pass that to sheriff officers for enforcement. The powers of a sheriff officer are not massively removed from the power to enter, to pin and ultimately to remove and dispose of property under schedule 3.

Dominic Grieve (Conservative, Beaconsfield)

I agree with the hon. Gentleman; such powers exist. Before he was elected to the House, the power to pin that exists in Scottish law tended to be condemned by Labour Members.

The power under discussion initially derives from the interim receiver's being appointed with power to seize property. That is a general power. As it is described in paragraph 3, it is an extensive power, because it is not confined to premises that belong to, or are connected with, the individual against whom the order has been made. Any premises can be entered. If the Government art fund had inadvertently acquired a painting that fell within those provisions, someone could roll up outside No. 10 Downing street and demand admission to take it off the wall of the Prime Minister's office. Given that such circumstances might arise, it might be wise for people to be required to go back to the court to get the warrant, or the authority, for a particular entry.

I accept the hon. Gentleman's point that if a general power to seize property had been granted against an individual, it might be a logical progression to assert that any premises connected with that individual could be searched. However, the provision currently allows any premises in the United Kingdom to be entered. Given that related property that is in the hands of innocent individuals might be involved, the power is far too unfettered. In fact, it is completely unfettered. Once appointed, the receiver can do anything that he likes, in relation to going around the country investigating assets. That could give rise to problems. The easy way of dealing with them would be to say to him, ''If you wish to enter premises in that form, go and get the authority of the court.''

I might be satisfied if the Minister were to come back to the Committee and say that he accepts that there is a valid underlying point, and that he believes that some redrafting could be done that would still give the receiver powers that would frequently not involve his having to go to the court, but that would also take into account circumstances where he should have to go to the court—such as if related property that was in the hands of another person was involved. The amendment was not intended to achieve our end in that way; we sought to take the easy course of saying, ''Get the court's authority.''

If the matter is left as it stands, the power will be too wide—particularly as it relates to people's homes. Parliament should be very careful about giving individuals the power, in effect, to break and enter property at will, and without giving a good or sufficient reason. Even the police do not have such powers—except in extraordinary circumstances—and neither should the receiver have them.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

In accordance with the best traditions of the Liberal Democrats, I have sympathy for both sides of the argument.

Nick Hawkins (Conservative, Surrey Heath)

I am unsure whether the hon. Gentleman is right to say that that is one of his party's best traditions, but it is certainly a tradition—as both the Government and the Opposition well know.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

That might be fair comment. However, it is not a tradition about which I am particularly embarrassed.

I feel that the power described in schedule 3 is too draconian, and I do not think that it is quite as obnoxious as the hon. Members for Surrey Heath and for Beaconsfield would have us believe. Strong parallels can be drawn between these powers and powers given to the recovery agents under normal civil proceedings. It is reasonable and necessary to give the receiver, interim receiver or administrator the power described in paragraph 3(2)(a).

The power described in sub-paragraph (2)(b) seems closer to the power that would be given to an investigative authority during a criminal prosecution. It is appropriate that a warrant should be obtained from the court before the execution of that power. The same argument applies to sub-paragraph (2)(c). In my professional experience, I have never come across the power to recover property in this manner under civil proceedings. In Scotland, an applicant under civil proceedings is entitled to enlist a motion for commission and diligence to require the other party to the action to produce certain articles. However, that is well removed from the powers that are envisaged here. If we move on to sub-paragraph (3), the powers become so general that there is a significant risk of an adverse effect on third parties.

I cannot support the Conservative amendment as drafted because it restricts the power unnecessarily. However, I ask the Minister to return at a later stage and recognise that this is an issue in which one size will not fit all.

Boris Johnson (Conservative, Henley)

I make a brief point not only to support what my hon. Friend the Member for Surrey Heath said about the draconian nature of the clause, but to express concern for the safety of the interim administrator or interim receiver—whoever he his. I understand that it is proposed that he or she should enter the property of the drugs dealer and, without explanation, start liberating various items from the property; for example, removing paintings from the walls. There may be circumstances in which unfortunate misunderstandings would occur between the interim administrator and the owner of the property.

Mark Field (Conservative, Cities of London and Westminster)

For example, burglars or a fence.

Boris Johnson (Conservative, Henley)

Exactly; my hon. Friend prompts me well. The owner of the property may think that ''interim administrator'' is a euphemism for burglar. It would be wise not only for the protection of the rights of an individual to his property, which all on this side of the argument support, but for the health and the safety of the interim administrator if he had the protection and authority of the court when he entered the property. That is why the amendment is thoroughly sensible.

Mark Field (Conservative, Cities of London and Westminster)

I agree with the points made by—most recently—my hon. Friend the Member for Henley (Mr. Johnson) and my hon. Friends the Members for Surrey Heath and for Beaconsfield. It is perverse that we have a more draconian set of powers under civil recovery proceedings than those that the police have to deal with criminal offences. It was often said, perhaps with tongue in cheek, after the introduction of a set of draconian powers under the financial services Acts of the late 1980s and early 1990s, that if terrorists who committed bombings of the City of London and Canary wharf had been tried under insurance fraud provisions in financial regulations rather than under criminal law, the police would have had greater powers to sort out the crimes. It seems perverse that the police do not have such wide-ranging powers in criminal matters. If an interim receiver or administrator used such powers, high profile problems and concerns with the agency could get into the press. The Government will argue that Mr. Bigs deserve all that is coming to them, but I fear that it will lead to perversity if well funded Mr. Bigs decide to take their cases to the European Court of Human Rights.

I hope that the Minister will take on board some of the issues that I have raised, and consider whether the wording could be modified. The amendment is sensible and there should be some prior authority. I accept that that authority may have to be ex parte and may not come directly from open court, because of the sensitivity of some of the matters. I hope that the Minister will give the amendment serious attention.

Bob Ainsworth (Labour, Coventry North East)

One of the functions of an interim receiver is to investigate the origins of property that is subject to an interim receiving order and other property that might have been generated by the same unlawful conduct. Another main function is to look after and manage the property. The functions are set out in clause 252.

Schedule 3 specifies some of the more significant powers that a court may confer on the interim receiver. The hon. Member for Surrey Heath does Opposition Members an injustice by deceiving them—I can only speculate on the reason—by saying that the powers of the interim receiver are given no prior consent by the court. As a result, the hon. Member for Henley is overly concerned with the interim receiver's safety when entering premises, and says that the receiver should be protected by the court.

I assure the hon. Member for Henley that the receiver, however protected, will turn up on the premises with a court order in his hand. That order will state exactly what the receiver can do and will specify the powers conferred on him by the court. I do not know why the hon. Member for Surrey Heath led the hon. Member for Henley to think that that would not be the case, but the state of affairs appears to have arisen from the Opposition's inability or refusal to accept that the provisions deal with civil recovery proceedings. The hon. Member for Beaconsfield has said that the process is a strange animal and not civil recovery proceedings.

Opposition Members deny that such proceedings should exist and that they should follow the process used by other litigants. I was about to intervene on the hon. Member for Surrey Heath when the hon. Member for Orkney and Shetland (Mr. Carmichael) did so on my behalf, effectively, to say that of course the receiver could not kick down the door of a burglar up the road. However, if the receiver chose to pursue that burglar through civil recovery proceedings, for whatever reason, and had a court order against him, the receiver could send someone in on his behalf to recover the property.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

The Minister makes a good point. I can say that because it is the point that I made when I intervened on the hon. Member for Beaconsfield. Will the Minister move on to consider the power in sub-paragraph (2)(c), which mentions the ''pursuance of the order''? That is distinct and parallel to proceedings in which an order has already been obtained.

Bob Ainsworth (Labour, Coventry North East)

Let me try to reassure those who are prepared to be reassured that, under the schedule, the powers will be conferred when the court is of the opinion that they could, or should, be used in order for the interim receiver or the administrator to carry out his function effectively. We have had repeated discussions about words such as ''may'' and ''must''. The first line of clause 252 states:

''An interim receiving order may authorise or require the interim receiver''.

Dominic Grieve (Conservative, Beaconsfield)

The Minister is right. The court may use discretion, and need not give the interim receiver full powers as described in schedule 3. The oddity is that, if the court expressed the powers in sweeping terms, there would be no requirement for the interim receiver to return to the court for authorisation. If circumstances were to change, the scope of the receiver's inquiries could extend far beyond that which was originally envisaged. That is the issue. Provided the court keeps control, I shall be content. However, under the current drafting of the schedule, the court could easily lose control.

Bob Ainsworth (Labour, Coventry North East)

The hon. Gentleman is absolutely right, although the court would have to have been convinced of the powers required in the first place. He is right to say that, if the court had been convinced of the necessity for the powers required, there would be no requirement on the receiver subsequently to return to the court to have the powers renewed on every occasion that he sought to use them. That would be the effect of the amendment that the hon. Gentleman proposes. While clause 254 may not require the receiver to have his powers renewed by the court, the exercise of his functions can be challenged and taken back to the court at any point in the future. It is not the case that, having received the power, the interim receiver may go off and do whatever he likes, and that no one may return to the court and ask, ''Wait a minute, is this what was intended? Is it justified in the circumstances?''

Nick Hawkins (Conservative, Surrey Heath)

The Minister is right. After the event, anyone may return to the court to seek directions. When speaking to the amendment, I postulated a situation in which the damage had already been done. Of course the interim receiver must obtain his original power. However, simply stating that that provision exists does not answer our concern about paragraph 3, because its terms are so wide. Once the interim receiver has obtained his general authority, he may enter any property. As I have explained, human nature being what it is, the receiver may kick down the door of the wrong property, and it would be too late for that innocent person to go to the court afterwards to seek directions.

Bob Ainsworth (Labour, Coventry North East)

The hon. Gentleman is right. That could be the case, but it need not necessarily be so. It would be possible for a person who became aware that the interim receiver was intending to exercise his powers, to object and ask the court to prevent him from doing so.

Paul Stinchcombe (Labour, Wellingborough)

The hon. Member for Surrey Heath postulates circumstances in which the administrator might kick down the door of a property to which he was not entitled to gain access. I understood that the powers afforded by paragraph 3 were limited to carrying out a search for, or inspection of, anything described in the order. Therefore, the properties that could be legitimately searched would be set out in the order. That action would be authorised and guaranteed under clauses 252 or 260.

Bob Ainsworth (Labour, Coventry North East)

My hon. Friend is right. The order would have to have been justified in the first place. The court would grant such powers only if it thought them necessary to establish whether the property that was the subject of the order was recoverable or associated property, or whether the property was recoverable in respect of the same unlawful conduct. It will not be a case of someone kicking down doors whenever they see fit. Prior authorisation will have to be given. If people want to challenge how the authorisation is amended or used, they may go back to the court. I accept what the hon. Member for Surrey Heath says. People need to know what is intended in the first place, but they can go back and stop the powers being used.

The Government accept that the powers are significant and may be intrusive, but it will be for the court to judge whether a particular power should be exercised in a particular case. That applies to the power to enter, search or seize as much as to any other power. The powers may be exercised only for the purpose of using or exercising the receiver's functions.

Under amendment No. 361, the powers of entry, search and seizure could not be used without the court's prior authority, which would change the position in the Bill. The prior authority of the court will have been given for the use of entry, search and seizure powers. An interim receiver or administrator would have to go back each time that he intended to use powers that he had already been authorised to use, in order to receive specific authority to use them in that case.

Nick Hawkins (Conservative, Surrey Heath)

The Minister accurately summarises exactly what we want and why we want it. Under our law as traditionally set out, the police must have a search warrant to enter premises. That position has been hallowed by precedent for not merely 10 or 20 years but at least 100 years, to my certain knowledge. It is the basis of the belief that an Englishman's home is his castle, and it should remain.

Bob Ainsworth (Labour, Coventry North East)

I hope that the hon. Gentleman will stop and listen to what he has just said and compare it with the powers conferred under clause 252 and schedule 3. Before the police may enter my home, they must have a search warrant. The interim receiver will have had to go to court and obtain a court order before he can do so. The hon. Gentleman tries to suggest that the provision is something completely different and relates to search and related procedures without prior court approval, and he knows that that is not so.

Boris Johnson (Conservative, Henley)

Will the court order apply to the specific premises involved? If such a bold interim administrator were to turn up at some premises without clear identification of the premises as a target of the operation to relieve a gangster of his property, not only injustice but, as I said, prejudice to the health and safety of that interim administrator might result. Will it be spelt out in the court order which premises are envisaged?

Bob Ainsworth (Labour, Coventry North East)

Opposition Members have repeatedly said during our proceedings that they have confidence in our court system and have effectively accused us of not having that confidence. The interim receiver will outline to the court the nature of the issue and the problem that he faces and will try to justify the powers that he requires in order to recover the proceeds of crime. If hon. Members are worried that the court will simply say, ''Oh, that's all right then'', and in any circumstances allow him to go away and do whatever he wants, that is a bit of a reversal of some of the allegations and accusations that they have thrown at us in previous debates.

Nick Hawkins (Conservative, Surrey Heath)

The Minister makes a valiant and admirable attempt to bolster his argument. The point made by my hon. Friend the Member for Henley goes to the heart of the issue. There is nothing wrong with the provisions in clause 252 and, in the case of Scotland, clause 260, which we shall consider in due course, that cover the way in which the interim administrator acquires his initial power. However, it is a general power; it does not identify specific properties. The problem with paragraph 3 is that it provides that once the interim administrator has his general power he has an unfettered power to enter any premises. That is where the mischief lies, and a safeguard needs to be provided.

Bob Ainsworth (Labour, Coventry North East)

The court will not give the interim administrator the general power to do what he likes, when he likes and how he likes unless he has managed to convince it, in the particular case, that that is necessary. The court will apply whatever restrictions it feels to be appropriate, before it votes such powers.

Paul Stinchcombe (Labour, Wellingborough)

I simply do not recognise the breadth of the powers that the hon. Member for Surrey Heath asserts we are trying to establish. As I understand paragraph 3 of schedule 3, we are talking about a power to enter premises in the United Kingdom, and to undertake certain steps—[Interruption.] The word ''and'' is included. One does not simply enter; one enters in order to take any of the specified steps, such as

''to carry out a search for or inspection of anything described in the order''.

The order would therefore set out what one is entitled to search, and for what one is entitled to search.

Bob Ainsworth (Labour, Coventry North East)

My hon. Friend is absolutely right. Under the civil proceedings—

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I just want to remind the Minister that sub-paragraph (2)(c) goes beyond that, as it includes the words

''in pursuance of the order or which may be required as evidence in the proceedings under Chapter 2 of Part 5.''

Bob Ainsworth (Labour, Coventry North East)

I am sorry; I cannot find that passage.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

It is line 6 of page 263.

Dominic Grieve (Conservative, Beaconsfield)

The point being made is that this is not just a question of recovering property. It includes the right to obtain evidence—an even more extensive power than the recovery of property, which is the receiver's primary function.

Bob Ainsworth (Labour, Coventry North East)

Opposition Members know that, as has been said repeatedly, the powers granted under this part of the Bill are modelled on civil recovery procedures, which are already in force and operate with regard to the civil law. Many Committee members are far more knowledgeable than I on this subject, and they know better than I do that civil procedure rules, which were recently updated, allow for search orders—formerly known as Anton Piller orders, as they are named after the particular case that first led to their being laid down—requiring defendants in civil recovery proceedings to allow claimants to search their premises for specific property. The power in schedule 3 is not unfettered, because it can derive only from a court order made under clause 252.

Dominic Grieve (Conservative, Beaconsfield)

The Minister is right to say that an Anton Piller order is regarded as a draconian power, but at least when it is granted it identifies the premises that will be searched. It does not give the receiver power to enter any premises in the United Kingdom in the course of his search. It identifies the premises, justifies the search to the court, and then the search takes place. The comparison with an Anton Piller order therefore seems rather odd.

Bob Ainsworth (Labour, Coventry North East)

If at the time the powers are sought under clause 252 the interim receiver wishes to justify the need for wider search powers, he will have to do that. He will have to convince the court that those are necessary in the case that he intends to pursue. The court will not grant wide-ranging and general powers, willy-nilly, without being absolutely convinced that they will be necessary to enable the interim receiver to pursue the case.

Nick Hawkins (Conservative, Surrey Heath)

The Minister is right to say that under clause 252—clause 260, with regard to Scotland—the interim receiver has to go to the court. However, once he has that power, all of schedule 3 kicks in, and the power in paragraph 3 is incredibly wide. We are debating the wording of the Bill, which refers to ''any premises''. That is far too wide. An extra safeguard is needed to provide something similar to an Anton Piller order.

Bob Ainsworth (Labour, Coventry North East)

It is fairly clear that Opposition Members intend that every time the interim receiver intends to use the powers conferred on him by the court, he must return to the court to obtain prior permission to do so. The Government do not accept that such an amendment would be desirable. It would involve the court in the minutiae of the interim receiver's activities and the use of powers that the court has already authorised. If the court wishes to exercise such scrutiny, it is free to do so. It could have done so in the first place. It can impose whatever restrictions and report-back provisions on the interim receiver that it chooses.

Clause 254 provides for the court to give specific directions to an interim receiver about the exercise of his functions at the application of the respondent, the interim receiver or anyone else who is affected by the actions of the receiver. That important protection could be relevant to the use of entry, search and seizure powers. I therefore suggest that Opposition Members are proposing a massively over-bureaucratic provision.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I invite the Minister to consider a different but not unrelated point. Whenever I see such a wide power, my immediate question is: how can it be abused? With that in mind, will he clarify what the position would be if the administrator undertook a fishing exercise that produced something which could be used as evidence in another matter, whether civil or criminal? Would such evidence be admissible in those other proceedings? Is there not a danger that because of the scope of the powers, a much more general back-door power will be given to the state?

Bob Ainsworth (Labour, Coventry North East)

Hon. Gentlemen are worried that the power is too broad. They say that the court has to give an interim receiver a power that he is free to exercise in a way that is not wanted. I am unable to convince them that such powers are not necessarily broad. The provision will make them broad only when the court considers such breadth of powers necessary. The court will not automatically grant broad powers to an interim receiver to do dreadful things. It will decide the breadth of the power that it confers on the interim receiver.

Stephen Hesford (Labour, Wirral West)

Is it not right to say that the power exercised under schedule 3 will not become more broad or draconian than the order that the court originally gives the interim receiver? Moreover, if the respondent perceives a problem, clause 254 will come to the rescue.

Bob Ainsworth (Labour, Coventry North East)

My hon. Friend is right. The powers will be those that were granted under the original application, having been justified by that application. They can be broadened only if the interim receiver makes a subsequent case and asks for them to be broadened. Clause 254 gives the reverse of such power, so any other person who is affected, or who considers that he will be affected, can go back to the court and ask for the powers to be narrowed. Those powers will have been granted by the court; they cannot be widened by anyone other than the court, having received representations from one side or the other. It is not within the realm of the interim receiver to broaden the powers himself.

Paul Stinchcombe (Labour, Wellingborough)

Is not the burden of the Opposition's case that, although on previous occasions they wanted us to give the court discretion, on this occasion we have given the court discretion? Now they want us to oblige the court to exercise that discretion successively before anything can be done.

Bob Ainsworth (Labour, Coventry North East)

My hon. Friend is absolutely right; I have made that point myself. I do not know to what extent the amendment is intended to be a wrecking amendment that would allow a person subjected to such an order to go back many times to prevent the necessary investigations.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I accept a lot of what the Minister says. Will he, in turn, say that elements of the powers granted under paragraph 3 go beyond those that are currently given? In particular, I hate to keep harking back but I draw the Minister's attention to paragraph 3(2)(c), which refers to the power

''to remove anything . . . which may be required as evidence in the proceedings under Chapter 2 of Part 5.''

Bob Ainsworth (Labour, Coventry North East)

What is the hon. Gentleman asking us to do? This is the statute; it is not the power itself. The court has the discretion to decide the breadth of the power. Is he asking us to say in statute that the court cannot give broad powers in any circumstances? He has said that he does not accept the Conservatives' amendment, which says that every time there is an alteration of the use of the powers, they must be re-submitted to the court for further justification. That could extend to the minutiae. The hon. Gentleman appears to be suggesting that there should be a narrowing of what the court's discretion can allow, irrespective of the arguments in favour of broad powers.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I am asking for a recognition that in some circumstances it will be inappropriate to exercise the power as generally as the Bill would allow, and that it will sometimes be necessary to have a specific order of the court, relating to specific goods. That does not seem to be envisaged, so I want more clarification.

Bob Ainsworth (Labour, Coventry North East)

The hon. Gentleman says that there may be circumstances in which it would not be appropriate for the full breadth of the powers to be applied to a particular case. He is right—but who should decide that? Should we decide here that the full breadth of the powers should not be available to the court, or should the court listen to arguments about the case and decide about the circumstances, and then say to the interim receiver, ''No, the powers you are asking for are not necessary to do the job in the case that you are presenting''?

Dominic Grieve (Conservative, Beaconsfield)

A certain circularity seems to be entering the argument. Our amendment is designed only to ensure that it is made clear, following the mere granting of the receivership with the powers, that if circumstances change and new evidence is supplied or new premises must be searched, the receiver must go back to the court to ensure that it is apprised of the way in which the search is developing and of what is occurring. I accept that the original order could be circumscribed, but the way in which schedule 3 is drafted suggests that it will not be, and that the court will ordinarily grant an unfettered power. We are complaining about the unfettered nature of that power. There must be a mechanism to control the power adequately, and it is Parliament's job to ensure that that happens.

Mr. Ainsworth rose—

Ian Davidson (Labour/Co-operative, Glasgow Pollok)

Will the Minister give way?

Bob Ainsworth (Labour, Coventry North East)

Not yet.

If there is a certain circularity, it is because I am effectively dealing with two solutions. One is that we narrow the breadth of discretion that the courts are allowed, and the other is that we insist on repeated returns to the court for justification of every use of the powers. If the hon. Gentleman is saying that if an interim receiver begins to use the powers that the court has given him in ways that were not originally intended he ought to be obliged to go back to the court, I have some sympathy with the logic of his argument. However, the receiver is not precluded from doing that.

The hon. Gentleman knows that if we include the kind of provision that he wants, not only will that have an impact on cases in which substantial issues have arisen that the interim receiver feels might not have been covered by the original power, but every time he seeks to exercise his powers he will be challenged and all the minutiae will be pored over. He will be required to go back to the court in order to arrive at premises not only with the power originally granted to him by the court order but with the subsequent power that gives him the specific ability to do exactly what he proposes to do, at the time of day when he proposes to do it.

Dominic Grieve (Conservative, Beaconsfield)

The Minister is exaggerating the problem. I expect that when the original power is granted, the receiver may say to the judge that he believes that certain premises must be searched, and the original power will grant that. If the receiver subsequently feels that further premises need to be searched, he will have to go back to the court for the authority to do that—as he also will with regard to evidence.

I do not expect the receiver to have to make separate applications for each individual search. He may apply for groups of premises to be searched, but I expect the premises to be identified. The wording of the schedule strongly suggests that at the outset of the granting of the receivers' powers, courts will be invited to give a general power. If that were not the case, the schedule would not have been drafted in that way.

Bob Ainsworth (Labour, Coventry North East)

It is not my understanding that an interim receiver would, in normal circumstances, be able to justify to the court being given a power that allowed him to break into any premises throughout the length and breadth of the United Kingdom. He would have to justify the extent of the power.

In all probability, the expected circumstances will apply: the receiver will go to the court, inform it about his investigations, and seek to persuade it that he should have the power to search premises A—or premises A, B, C, D, E, F and G. He will have to justify the powers that he is requesting.

Mr. Davidson rose—

Bob Ainsworth (Labour, Coventry North East)

I had better give way to my hon. Friend this time or he will be angry with me, and I dare not risk that before Christmas.

Ian Davidson (Labour/Co-operative, Glasgow Pollok)

I am grateful to the Minister for giving way. I had hoped to speak myself, but on my return after an absence of a week, I found that members of the Committee were merely making a series of interventions on the Minister, so I thought that I had better swiftly make mine.

I was distressed by the mention of Anton Piller. I initially thought that that was a foreign language, but I now remember that Anton Piller was a second-rate centre half for Dundee in the 1980s—although I do not understand how he is relevant to the discussion.

Nothing has changed during my absence. The Conservatives are still behaving as the criminals' friend. They are attempting to make the pursuit of villains as difficult as possible—especially in circumstances such as those that have been mentioned, when speed might well be of the essence, and it might be essential that the prosecution, or the pursuers, should not have to go back to court, because that would cause an undue delay.

What would happen if during their investigation of a particular premises, the receiver and his colleagues discovered that there were other premises of which they had not previously been aware, which were relevant to the case? They should be able to go and pursue their investigations at those premises immediately; they should not have to go back to court. Is this not simply another instance of the Opposition saying that they support the Government's legislation, while seeking to make matters as difficult as possible?

John McWilliam (Labour, Blaydon)

Order. That was supposed to be an intervention, but it turned into a speech. I remind hon. Members that there is a rule about tedious repetition, because we are getting close to breaking it.

Bob Ainsworth (Labour, Coventry North East)

Indeed, Mr. McWilliam.

I do not know anything about Anton Piller.

Dominic Grieve (Conservative, Beaconsfield)

It was a ship.

Bob Ainsworth (Labour, Coventry North East)

I was about to suggest that the two Anton Pillers might have been the same person—because perhaps anyone who plays for Dundee United should be subject to civil proceedings. But clearly that cannot be right, because apparently the other Anton Piller was a ship, not a person. We are talking about two different things.

More seriously, the hon. Gentleman suggested that the interim receiver would have the power to move on. As I understand it, the receiver would not have the power to move on. The court would have sought clear justification for the breadth of the powers asked for in the first place. Only in abnormal circumstances would the court give the receiver the massively wide powers needed to do the kind of things suggested by the Opposition and by my hon. Friend the Member for Glasgow, Pollok, such as that receivers would be allowed to go to a house up the street and search that, too. That would not be allowed. The breadth of the power would have been limited.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

How nice it is to have the hon. Member for Glasgow, Pollok back among us. It is good to see that whatever the other difficulties of the residents of Pollok, they seem to be enjoying a spell of good weather at the moment, judging by his appearance.

If the position is as the Minister suggests, could not paragraph 3(1)(a) be re-written to say something like, ''enter any premises in the United Kingdom to be named in the order''?

Bob Ainsworth (Labour, Coventry North East)

I am in serious danger of seeming to be far too consensual. I have little sympathy with the amendment because of the way in which it was worded and presented, but as an attempt to bridge the gap between us, I will reflect on the points that have been made. If it seems that there is some requirement or predisposition of the court to grant powers wider than those that I envisaged, I will consider whether the drafting needs to be improved. However, I have to say to the hon. Member for Orkney and Shetland that I do not think that that is a problem. It is clear that the court has the discretion to require a detailed justification of the powers requested, and it will do just that.

Paul Stinchcombe (Labour, Wellingborough)

Under the scheme that the Minister advocates, will the court have the discretion to specify, if it feels that that would be right, the premises to which the order applies, or will it be obliged to grant the power in the broadest possible terms?

Bob Ainsworth (Labour, Coventry North East)

There will be no obligation for the court to grant the power. The interim receiver will have to go to court and justify the powers that he requires to carry out his investigations, and the court will listen to his case before it decides on the breadth of the power.

Mr. Davidson rose—

Bob Ainsworth (Labour, Coventry North East)

I give way to my suntanned hon. Friend.

Ian Davidson (Labour/Co-operative, Glasgow Pollok)

I shall respond to those points in a moment.

Will the Minister clarify what will happen if, after premises have been investigated, new information is discovered about other premises? Will the powers cover a subsequent investigation, and if not, is it not right that they should? In a recent case involving money laundering, the police raided premises and found a mobile phone line connected to other premises of which they were unaware. It had been used to warn people in those other premises. The police immediately went round there, but just missed catching the people. We do not want to make the provision unduly cumbersome. If when premises are being investigated, it is found that other premises are directly connected, they should be investigated, too.

Bob Ainsworth (Labour, Coventry North East)

My hon. Friend seems to be endorsing something that I thought that he was protesting about a few moments ago. If new evidence becomes available to the interim receiver and he seeks further powers than he was granted by the court in the first place, he will have to go back to the court to obtain them. He will not be allowed to move up the road and follow his nose. The court hearing will be ex parte—goodness me, I am slipping into the language of lawyers. The interim receiver will receive such power without the prior knowledge of the person whose premises he intends to search, but he will not be able to take such action without going back to the court if it is outwith the powers that he first received.

Ian Davidson (Labour/Co-operative, Glasgow Pollok)

Why not? Let us suppose that clear evidence is discovered, which will lead the interim receiver to other premises. I appreciate that it will sometimes be entirely reasonable to ask the court for additional powers. However, in other circumstances it may not be, because there will be a real danger that in the meantime, the property will be removed. Could it not then be justified under the Bill for action to be taken and justified subsequently? That subsequent justification would be the guarantee that the power would not be abused. I am not suggesting that the interim receiver wander up a street on a whim, but that he should do so when, and only when, there is clear evidence that the property for which he is searching has been moved elsewhere, and that the matter is urgent. Could not it be justifiable for the interim receiver to take action first and explain himself later?

Bob Ainsworth (Labour, Coventry North East)

Such issues may have been covered under the original power when it was granted. The interim receiver could seek a broadening of that power. An individual who considered that the interim receiver was using his power unreasonably could seek power from the court to narrow or restrict what was being asked for. The position is clear—but you were right, Mr. McWilliam: we are in danger of being tediously repetitious. I shall be happy to examine the matter raised by the hon. Member for Orkney and Shetland and check whether we are justifying the provision adequately. However, I am not enamoured of the amendment, and I will resist it. I do not want to give the Opposition the impression that we shall repeat our reaffirmation of the court order that will be given.

Nick Hawkins (Conservative, Surrey Heath)

We shall press the amendment to a Division. I am disappointed by the Minister's response—but I shall not repeat our arguments, except to say that I had already welcomed back the bronzed hon. Member for Glasgow, Pollok, but he was out of the Room at the time.

The hon. Member for Glasgow, Pollok wants to go even further than the Bill. Will he consider seriously what his reaction would be if an entirely innocent constituent was affected by such draconian powers? In his entirely laudable attempt to hit the Mr. Bigs, he works on the assumption that the only people affected by the Bill will be the guilty. If we could be certain about that, there would be no problem. We are not trying to water down the Bill as he suggested, but to ensure that it does not adversely affect the innocent. The problem with the powers given under paragraph 3 to search any premises is that they are far too wide. We are trying to ensure that entirely innocent people are not at risk of having their doors suddenly kicked down by an interim administrator who has simply made an honest mistake about the wrong person in the wrong place. As the Minister is aware, human nature being what it is, mistakes are made.

Ian Davidson (Labour/Co-operative, Glasgow Pollok)

The hon. Gentleman asked what would happen if entirely innocent people in my constituency had their doors kicked down. I would invite them to go with me into their drawing room and I would say to them, ''A mistake has been made. We are very sorry. Human nature being what it is, inevitably mistakes are made.'' I would be quite prepared to justify the existence of mistakes, and I believe that my constituents in general would accept them, because of the greater good being pursued. What worries me about my constituency is that doors are being kicked in on a regular basis, by dealers and by people with baseball bats and knives pursuing debts, and for robberies and the like. I mentioned earlier how some families in my constituency—

John McWilliam (Labour, Blaydon)

Order.

Ian Davidson (Labour/Co-operative, Glasgow Pollok)

Did I speak for too long?

John McWilliam (Labour, Blaydon)

The hon. Gentleman should not catch his constituents' bad habits. That was too long for an intervention.

Nick Hawkins (Conservative, Surrey Heath)

The hon. Gentleman's aim of hitting serious criminals is right, but I am sorry to say that we have a plain disagreement on the subject. Opposition Members believe that an Englishman's home is his castle. Perhaps a Scotsman in Glasgow, Pollock does not regard his home in that way.

David Wilshire (Conservative, Spelthorne)

Is my hon. Friend aware that one of the hallmarks of fascist dictatorships is the knock on the door, which is subsequently bashed down? Another is the lack of justice. We must stand up for liberty—which does not mean that we are standing up for criminals.

Nick Hawkins (Conservative, Surrey Heath)

My hon. Friend is right.

We would have no problem if clause 252—and, in the case of Scotland, clause 260—and schedule 3 were in the form that the Minister, in his usual reasonable way, suggests, and clause 252 had provided that when the interim administrator goes before the court to request his general power, he must have a specified list of premises, and would have to go back if he wanted to examine other premises. That is precisely the point that the hon. Members for Wellingborough and for Orkney and Shetland, as well as my hon. Friend the Member for Beaconsfield and I, have made. However, that is not what clause 252 provides. It does not have that reasonable drafting.

In due course, having considered the matter with his officials, the Minister may decide, rather than redrafting schedule 3, to redraft clauses 252 and 260 as he suggests that they are drafted but they are not. We might then find a way of solving the problem. However, as things stand, clause 252 gives the interim administrator a general power from the court. In effect, the hon. Member for Glasgow, Pollok has what he wants. The Minister may claim that he has not, but the interim administrator, having acquired his powers, has the power to enter any premises in the United Kingdom to take any of the steps specified, which I shall not tediously repeat. He does not have to go back to the court. That is why there is a problem.

Paul Stinchcombe (Labour, Wellingborough)

Does the hon. Gentleman not understand that the power is not given by the Bill? The Bill does not authorise the entering of any premises. That power is vested in the court in the exercise of its discretion, on whatever terms and with whatever limitations it believes appropriate, specifying whatever premises or property it is persuaded to specify.

Nick Hawkins (Conservative, Surrey Heath)

The problem is that nothing in the Bill tells the court that in giving that power to the interim administrator it must specify a list of premises. Of course it might of its own volition do so, but we want to ensure that safeguards are provided to protect the innocent so that, as with a search warrant, if someone wants to search premises they must have the court's permission. We should not have an Act of Parliament that gives a person the power, after going to the court the first time for a general power—which need not be specific, because clause 252 does not force the court to make it specific—to search any premises in the United Kingdom.

We have a straight choice between preserving the rights of the innocent, which have been hallowed for generations in English law, and giving powers that are far too draconian. I wish to press the amendment.

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 12.

Clause 254 - Supervision of interim receiver

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 350, in page 148, line 43, leave out 'interested in' and insert 'affected by'.

The clause provides for the supervision of the interim receiver and variations of orders. Subsection (3) states:

''The court may at any time vary or set aside an interim receiving order.''

However, subsection (4) states:

''Before doing so, the court must (as well as giving the respondent and any other party to the proceedings an opportunity to be heard) give such an opportunity to the interim receiver and to any person who may be interested in the court's decision.''

The amendment would delete the words ''interested in'' and replace them with the words ''affected by''.

The amendment is probing. I want clarification from the Minister on what category of person would be considered interested in the decision. If the amendment were made, how would that change the situation? I want clarification on the category of individuals who could intervene in proceedings and ask to be heard.

The matter is important because it is essential that any person who is likely to be adversely affected should have the opportunity to be heard, which is why I prefer the term that I proposed in the amendment. However, if the Minister gives me reassurance, I will accept that the terms may be equivalent.

Bob Ainsworth (Labour, Coventry North East)

Thank you, Mr. McCabe, for standing in for Mr. McWilliam.[Mr. John McWilliam in the Chair]

Dominic Grieve (Conservative, Beaconsfield)

The Minister has made my Christmas. I am delighted that he thinks that ''affected by'' is a better wording. I think that it is, as I explained previously.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I invite the Minister to invite the hon. Member for Beaconsfield to quit while he is ahead.

Bob Ainsworth (Labour, Coventry North East)

There is no more to be said.

Amendment agreed to.

Clause 254, as amended, ordered to stand part of the Bill.

Clause 255 - Restrictions on dealing etc. with property

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 351, in page 149, line 2, leave out 'must' and insert 'may'.

John McWilliam (Labour, Blaydon)

With this it may be convenient to take amendment No. 386, in clause 263, page 152, line 20, leave out 'must' and insert 'may'.

Dominic Grieve (Conservative, Beaconsfield)

We come to the clause on restrictions on dealing with property during receivership. Clearly, the purpose of an interim order is that it should ordinarily prevent and restrict dealings with property, so that the property is not dissipated prior to the civil recovery proceedings taking place. It is also important that, in the interests of justice, as far as is possible before a final determination of any case has occurred, an individual should not be prejudiced or penalised by being prevented from meeting reasonable living expenses or carrying on his trade or business. Until the final determination of the issue and civil recovery, that person is entitled to the presumption that he is properly enjoying his assets and able to use them. For that reason we have tabled several amendments. Although they are being grouped separately—an arrangement with which I have no difficulty—they are, to an extent, interlinked as they offer a series of choices to the Committee as to how to approach an issue that may be of some complexity.

Amendments Nos. 351 and 386 would simply provide that it is a mandatory requirement that any person affected by the restriction on dealing should be able to

''meet his reasonable living expenses, or . . . to carry on any trade, business, profession or occupation, and''—

I stress this—

''may be made subject to conditions.''

I stress that last phrase because ''subject to conditions'' means that the individual would never have a complete freedom to do as he chose. Nevertheless, there would be a requirement that he should be able to do those two things. It should be borne in mind that we are not talking about criminal proceedings—the person is not likely to end up going to prison. Ordinarily, such individuals will outwardly be leading a respectable existence.

It might also be relevant to split the position of the respondent in the proceedings from that of any other person affected by the order. We shall discuss that issue when we debate the next set of amendments. With regard to the current batch of amendments, we should consider whether it should be mandatory for the order to allow for reasonable living expenses and the carrying on of a trade, business, profession or occupation subject to conditions. As a matter of principle, I believe that a person should be able

''to meet his reasonable living expenses''

and

''carry on any trade, business, profession or occupation''.

I believe that I can anticipate some of the Minister's arguments, but I should like that to be the goal that we aim at, even if the Minister informs us that it may lead to circumstances in which assets are dissipated.

If I cannot persuade the Minister of the case for the amendments, I shall not press them to a Division. Amendment No. 386 mirrors amendment No. 351 in respect of Scotland. When we move to the next group of amendments, I shall consider whether it would be proper for the respondent's proceedings to split from those of any other person affected by the receiving order.

Bob Ainsworth (Labour, Coventry North East)

The amendments would make it discretionary, rather than mandatory, for interim receiving orders to prohibit dealing with the property. If civil recovery is to be effective, the rights of the director—or, in the case of Scotland, Scottish Ministers—to recover property should not be frustrated because the respondent has dissipated the assets. That is why the civil recovery scheme allows an interim receiving order to be made if the necessary criteria are met.

An interim receiving order is an order for the detention, custody or preservation of property and for the appointment of an interim receiver. If the court agrees that the criteria for an interim receiving order are satisfied, it may make such an order under clause 251 or clause 259. The court is not required to do so even if it accepts that the conditions in clause 251(5) and (6) or the equivalent conditions in clause 259 are met. If, therefore, a court has decided to make an interim receiving order, it has decided that the property included in the order should be detained, taken into custody or preserved as appropriate.

In order to ensure that the property is given the protection intended under the interim receiving order, it is essential that the court prohibits any person whose property is covered by the order from dealing with it. As defined in clause 310, ''dealing'' with property

''includes disposing of it, taking possession of it or removing it from the United Kingdom''.

Such activities seem incompatible with the intention of an interim receiving order. We therefore think that it is right that the court should be required to make the prohibition, subject to its power to make exclusions as allowed under clause 255 and its Scottish equivalent, clause 263. Those clauses strike the right balance in that respect and adopt the approach applied to freezing injunctions in private civil litigation.

The prohibition on dealing with property is not inflexible. The court may make exclusions from the order, either when it is made or later. Any person to whose property the order applies can apply for an exclusion to allow dealing. However, it is right that the default position should be that dealing with property that is subject to an interim receiving order is prohibited. That seems the safest and fairest option; it will allow property to be excluded but will protect the rights of the director or Scottish Ministers to recover the property.

I do not think that the hon. Gentleman is intent on proving that he will withdraw the amendment once we have considered it. He said that the next group of amendments would allow the respondent to be dealt with differently from anyone else affected. The discretion is there; it is just the other way round from that which he would like to insert in the Bill.

Dominic Grieve (Conservative, Beaconsfield)

I listened carefully to the Minister, and I am aware of the potential problems of providing a discretionary power in line 2 of the clause. In certain circumstances, the court might, if allowed, consider that it had an exceptional reason to allow dealings in the property. That said—and subject to the key issue, which is the need for compensation provisions for those who are adversely affected—I am mindful of the Minister's comments. Therefore I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 362, in page 149, line 8, leave out 'any person' and insert 'the respondent.'

John McWilliam (Labour, Blaydon)

With this we may discuss the following amendments: No. 379, in page 149, line 11, at end insert—

'(3A) An exclusion must, in particular, make provision for the purpose of enabling any person other than the respondent—

(a) to meet his reasonable living expenses, or

(b) to carry on any trade, business, profession or occupation,

and may be made subject to conditions'.

No. 352, in page 149, line 12, leave out subsection (4).

No. 387, in clause 263, page 152, line 25, leave out 'may' and insert 'must'.

No. 388, in clause 263, page 152, line 30, leave out subsection (4).

Dominic Grieve (Conservative, Beaconsfield)

I now turn to the second group of amendments that we have tabled to the clause, which are more specific. They would allow for individuals to meet their living expenses and carry on trade or business that would require an ability to deal in the property that has been subject to the receiving order.

The amendments differentiate between the position of the respondent and the position of others who may be subject to the order. My principal concern is for innocent parties, who may be affected by the order and against whom the receiver acts solely in order to secure property, without any accusation of collusion's having necessarily been made against them. In the case of the respondent, I accept that discretion should be exercised as to whether he is allowed

''(a) to meet his reasonable living expenses, or,

(b) to carry on any trade, business, profession or occupation''.

However, in the case of another person, who is not the respondent to the proceedings, there is a powerful argument for a mandatory provision enabling him to meet his reasonable living expenses and carry on his trade, business, profession or occupation. That is the intention of the amendments.

Amendment No. 362 would remove the reference to ''any person'' and would insert the reference to ''the respondent''. Thus, subsection (3) would deal only with the respondent's position and leaves that as discretionary. Amendment No. 379 would introduce a new subsection (3A) to deal with the situation of any person other than the respondent, and makes the provisions mandatory. Thus, provision would have to be made for the reasonable living expenses and the opportunity to carry on the trade, business, profession or occupation.

In addition to those two principal amendments, we have tabled other amendments. Amendment No. 352 is important. Under subsection (4), no exclusion may be made

''for the purpose of enabling any person to meet any legal expenses in respect of proceedings under this Part.''

Can the Minister clarify what it is intended should happen in such circumstances? Will there be an automatic eligibility for legal aid? I suspect that the hon. Gentleman will refer to the fear that assets may be dissipated by the litigation and in running up legal fees. However, we are dealing with civil proceedings, not confiscation. There has always been the opportunity for a party to civil proceedings to pay his lawyers at the end of those proceedings, thus dissipating the potential assets available for recovery. It is one of the facts of life that individuals have to accept.

Does the Minister wish to intervene?

Bob Ainsworth (Labour, Coventry North East)

No.

Dominic Grieve (Conservative, Beaconsfield)

It would not be worth my while, if I were to bring proceedings against an individual to recover several thousand pounds, and that individual could not pay me the money—he might have had the money at the start of the proceedings, but during the course of them he might have paid his lawyers, so that, when the case came to judgment, that money was not available. One must take account of the costs of legal proceedings when deciding whether to sue someone.

We are discussing ordinary civil proceedings. As the Minister often reminds the Committee, this is a civil recovery procedure: indeed, he is unhappy when I suggest that it is some new administrative law structure, introduced by the heavy hand of the state—he gets excited and worked up when I say that.

If we are dealing with ordinary civil proceedings, I am surprised that, in this section of the legislation, we should be preventing reasonable legal expenses from being provided for out of the defendant's—or, rather, the respondent's—money. I want the Minister to comment on that point. I have not decided whether to press the matter to a Division, as a serious issue is at stake.

Amendments Nos. 387 and 388 refer to the same matter in respect of Scotland, so I need not address them in detail.

Bob Ainsworth (Labour, Coventry North East)

Here I am, trying to foster the impression that I am totally unflappable, and the hon. Gentleman has seen through me; he realises how excitable I am.

Amendments Nos. 362 and 379 amend the clause to require the court to make exclusions, where a person other than the respondent is concerned. Amendment No. 362 would amend subsection (3) so that it applied solely to the respondent. Thus, the court would have discretion whether to make exclusions to enable the respondent to meet reasonable living expenses, or to carry on a trade, business, profession or occupation.

Amendment No. 379 would insert a new subsection, relating to any person other than the respondent. It therefore assumes that amendment No. 362 has been made. It would require that exclusions be made to enable such persons to meet their living expenses and to carry on their trade or profession.

The hon. Gentleman said that he wanted the same measures to apply to Scotland, although the amendments do not quite do that, due to a drafting error.

The effect of amendments Nos. 352 and 388 would be to allow the court to release assets to pay legal fees for proceedings under part 5.

As I explained in speaking to the previous amendments to clauses 255 and 263, for civil recovery to be effective, the right of the director to recover property should not be capable of being frustrated by the dissipation of assets by the respondent. That is why the civil recovery scheme that is set out in the Bill provides that an interim receiving order may be made, where the necessary criteria are met. We recognise, however, that there may need to be exclusions to the general prohibition on dealing with property, where an interim receiving order or interim administration order is in place. That is why the court is empowered to make exclusions. Particular reference is made to exclusions that would enable a person to meet his reasonable living expenses, or to enable him to carry on a business. However, exclusions could be made for other purposes at the discretion of the court.

Clause 255 and its Scottish equivalent thereby adopt the approach already applied in the case of freezing injunctions made in private civil litigation.

Mr. Grieve indicated dissent.

Bob Ainsworth (Labour, Coventry North East)

The hon. Gentleman indicates that that is not so, and he is correct when considering people overall. However, when freezing orders are made in civil litigation, the only way in which they subsequently can be used to offset court costs is with the permission of the court. The situation is not always as he said, although I accept that factors must be considered in some circumstances that may occur.

Dominic Grieve (Conservative, Beaconsfield)

The Minister is absolutely right. He implied that discretion exists to allow that to occur. Under these provisions, there is no such discretion.

Bob Ainsworth (Labour, Coventry North East)

That is right. There are other provisions, which we shall debate later.

As far as England, Wales and Northern Ireland are concerned, the amendments would require the court to make a provision to enable a person other than the respondent to meet the particular expenses described. A slightly different position applies to Scotland, but the hon. Gentleman did not intend to address that so we can leave it aside.

We do not believe, however, that it would be reasonable to make these exclusions mandatory, whether the expenses are those of the respondent or another person. The property that is subject to an order could, for example, be a painting or a piece of jewellery. In that case, it would not make sense to require the court to make an exclusion to enable a person to meet his reasonable living expenses. That would not be necessary in the likely event that he had another source of income. If a person's only assets were proscribed, the court has the discretion to allow for reasonable living requirements. However, if a person had a very good income and the means to represent himself, and if the goods being sought were a particular item, it would be unreasonable to allow the items to be released to defray living expenses. The amendment would make that mandatory. The court should be free to take decisions that pertain to the case before it.

If the order related to a person's bank account and he had no other source of income, the need to make an exclusion is—obviously—likely to be self-evident. It seems to me that courts are used to making assessments on such points. They will be able to take the most sensible and appropriate decisions. The requirement that the amendments would introduce is unnecessary and would be rather perverse in some circumstances.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I hesitate to intervene, because I may, again, be missing the point. Is the point that there is a discretion vested in clause 255(2) about whether an exclusion order is made? If a case is made for an exclusion order, the order must be as provided under subsection (3)(a) and (b). Does that answer the point about the individual with the painting and other means that are not frozen?

Bob Ainsworth (Labour, Coventry North East)

There is discretion within the exclusion order other than in the case of court and legal costs, which I was about to move on to. Is that the point that confuses the hon. Gentleman?

Dominic Grieve (Conservative, Beaconsfield)

I think that the point that the hon. Member for Orkney and Shetland tried to make was that clause 255(2) provides discretion for making exclusions when the interim receiving order is made. If there were a circumstance—as described by the Minister—in which a person had substantial sources of funds other than those subject to the receiving order, the question under subsection (3) would not arise. The amendment would provide that in the absence of such other sources of funds, it would be mandatory for provision to be made from the sums that were subject to the receiving order.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

That is what I would have said.

Bob Ainsworth (Labour, Coventry North East)

If I did not have the clause in front of me, I would not have been able to answer the hon. Member for Beaconsfield. I cannot see the problem. The hon. Gentleman is suggesting that, while it is discretionary whether to make the exclusion, it should be mandatory in such circumstances to meet someone's reasonable living expenses. Clause 255(3) refers to the issues that courts should be willing—[Interruption.]

John McWilliam (Labour, Blaydon)

Order. I am trying to listen to the Minister. If members of the Committee want to have a conversation, will they do so outside the Room?

Bob Ainsworth (Labour, Coventry North East)

Clause 255(2) is about the making of exclusions. If the provisions of clause 253 were made mandatory, there would not be such discretion. The court would have to decide whether to make the exclusion in the first place, not whether to allow for reasonable living expenses. Surely it should be able to consider the circumstances of the case when deciding whether reasonable living expenses need to be allowed for, not only whether to make the exclusion.

Although the Bill currently allows the courts to make exclusions, subsection (4) of clause 255—and clause 263—prohibits the making of an exclusion for the purpose of enabling a person to pay legal costs arising from proceedings under part 5. Amendments Nos. 252 and 388 would instead allow the court to release assets to pay legal fees. There is no doubt that respondents and third parties in civil recovery proceedings must have proper legal representation. The question raised by the amendments is whether they should be able to rely on the assets that are the subject of the proceedings to pay for that legal representation.

Having considered the options, our view is that respondents and third parties should meet legal costs from assets that are not subject to an interim receiving order or an administration order or, when they have insufficient further assets, their legal costs should be publicly funded. That is why clause 255(4) and clause 263(4) will prevent the court from excluding assets to meet legal expenses in civil recovery proceedings.

Assets that are frozen under an interim receiving order are the subject of dispute between the state and the holder of the assets. The order serves to preserve the assets so that, in the event that a recovery order is made, there should still be property remaining for the enforcing authority to recover. If the holder of the assets were allowed access to them to pay legal expenses, there is a risk that the expenditure may dissipate the property before the matter can be resolved. That would prejudice the state's right to recover the proceeds of crime in civil recovery proceedings.

When freezing orders are used in other civil proceedings, it is for the court to determine the uses to which the frozen assets can be put. We understand that the courts would look carefully at any application to unfreeze assets for legal expenditure. We believe, however, that in such instances it is preferable to make legal aid available when it is needed. I shall set out the arrangements for meeting legal costs. People who are not party to the proceedings may use assets that are not subject to an interim receiving order to pay for their legal expenses. If parties do not have sufficient means available to them to meet their legal expenses, they will be able to apply for public funding under the relevant scheme. Such funding will be made available to both respondents and third parties in civil recovery proceedings.

In order for an applicant to be granted public funding, they must satisfy both a means and a merits test. Parties to civil recovery proceedings will need to meet the standard means test. However, the standard merits test will be relaxed to the extent necessary to ensure that everyone has access to legal funding who needs it, and who qualifies financially.

If the director loses his case the court will, of course, be able to order him to pay the respondent's legal costs. Compensation will also be available under later provisions of the Bill.

We believe that these arrangements will ensure that people are properly represented in civil recovery proceedings, without unnecessarily risking the dissipation of any property pending the decision of the court on whether it is recoverable.

I was about to finish speaking but I give way.

Dominic Grieve (Conservative, Beaconsfield)

I should have intervened earlier. The Minister made an important point when he said that the merits test would be relaxed. I assume that he meant that the merits test would be disregarded, because I cannot see how the matter could be fairly dealt with unless one were to say that, if such proceedings were brought against someone, they must, as of right, have an entitlement to legal aid if they do not have sufficient means. If that were confirmed, it would help me to decide how to respond to the matter.

Bob Ainsworth (Labour, Coventry North East)

As I have said, we would have to ensure that everyone was legally represented. The merits test will not be met by everyone. If they do not have other assets, they will have to be represented, and, therefore, they will need to be subjected to the means test—and the means test only.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I have a few observations to make.

With regard to the question of mandatory elements to an exclusion, there is a two-stage process. The court will consider whether an exclusion should be made, and if the court is satisfied about that, that would be done under subsection (2). If the court is persuaded that an exclusion should be made in relation to any person other than the respondent, it would be proper if the exclusion were mandatory.

With regard to that matter, the Minister said that he could not see a problem. I do not think of the issue that I am raising as a problem. However, what I am proposing would be an important safeguard for the rights of third parties, and it would send an important message to anyone who might become involved, as a third party, with litigation under the Bill.

I do not understand the thinking behind subsection (4). It seems to me to be part of the Government's current general fatwa against lawyers.

Nick Hawkins (Conservative, Surrey Heath)

In rising to intervene, I should declare that I have an interest in the matter under discussion; I am a member of the Bar, although I am not currently in practice.

Does the hon. Gentleman not find it extraordinary that there is such a divergence of views about lawyers within the Government? Whenever Ministers who are not lawyers want to attack lawyers, they do so, but the Government are packed full of lawyers—and the leading one is the Prime Minister. Therefore, there are Ministers who do not spend all their time attacking lawyers: only the Lord Chancellor enjoys the best of both worlds, by attacking lawyer fat cats although he is one of the fattest of all the fat cats.

John McWilliam (Labour, Blaydon)

Order. Perhaps it is because I am not a lawyer, but I can discover no relationship between the hon. Gentleman's remarks and the amendment under discussion.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I will say nothing about the office of the Lord Chancellor and its current holder, other than that, in my experience as a highlander born and bred, that is all that can be expected of people from Lairg. I will say no more than that.

I am heartened by the Minister's comments with regard to the availability of legal aid, in particular in relation to the means test. I would hope that in practice that would be sufficient to meet our concerns.

Dominic Grieve (Conservative, Beaconsfield)

In the circumstances, I would want to press to a Division the amendments that would make it mandatory for the third party to have an opportunity to provide for his reasonable living expenses or carrying on his trade, business, profession or occupation if the court has, under subsection (2), as the hon. Member for Orkney and Shetland and I discussed, considered that it would be right to make certain exclusions. I do not want to make a meal of the matter. Perhaps the sensible approach would be to put amendment No. 379 only to the vote.

John McWilliam (Labour, Blaydon)

Order. The hon. Gentleman will have to press amendment No. 362, too.

Dominic Grieve (Conservative, Beaconsfield)

Then I shall put amendments Nos. 362 and 379 to the vote as rapidly as possible.

On the other amendments, and the matter relating to legal aid, the fact that there will be no merits test provides me with substantial reassurance, although I entirely share the view of the hon. Member for Orkney and Shetland that the provision is a fatwa against lawyers. However, as long as the money comes from somewhere to pay for such legal expenses, subject to declaring my interest, which I suppose that I should, I shall not move that amendment formally.

John McWilliam (Labour, Blaydon)

Just so that hon. Members are clear, amendment No. 379 is consequent on amendment No. 362. The question put will relate to amendment No. 362, because if amendment No. 362 is lost, so is amendment No. 379.

Question put, That the amendment be made:—

The Committee divided: Ayes 5, Noes 12.

Standing Committee B

Clause 255 - Restrictions on dealing etc. with property

Roger Gale (Conservative, North Thanet)

Good afternoon, ladies and gentlemen. Your festivities can start at 7 o'clock. However, before then we have quite a few clauses to get through.

Bob Ainsworth (Labour, Coventry North East)

I beg to move amendment No. 311, in page 149, line 16, leave out

'in relation to recoverable property'.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to take Government amendment No. 406.

Bob Ainsworth (Labour, Coventry North East)

The amendment introduces a slight change to subsection (6). Amendment No. 406 makes the same change to clause 263, which applies to Scotland. Clause 255 sets out provisions on exclusions that the court may make in an interim receiving order to allow dealing with property to which the interim receiving order applies. Clause 263 does the same in respect of Scotland. Property that may be subject to an interim receiving order or an administration order may be recoverable property or associated property. Exclusions may be made under clauses 255 and 263 in respect of both recoverable and associated property.

Subsection (6) currently sets out a proviso to the power to make exclusions, which is that the court must exercise the power with a view to ensuring that, as far as practicable, the rights of the director or Scottish Minister to recover property are not unduly prejudiced. As currently defined, however, the proviso applies in respect of recoverable property only, not associated property.

It is less likely that an exclusion in relation to associated property would prejudice the right to recover than an exclusion in relation to recoverable property, but it could be the case. It would therefore be reasonable to require the court to consider whether any exclusion applying to associated property would unduly prejudice the right of enforcement in the same way that, as the Bill is currently drafted, it would have to consider that in respect of recoverable property.

The amendment will mirror the provisions under clauses 257(2) and 264(2), which provide that associated property may be excluded from the terms of an interim receiving order or an administration order entirely, if the court thinks that the satisfaction of any

right to recover the property will not be unduly prejudiced. It will not prevent the court from making exclusions in respect of associated property. It will ensure that, when taking decisions, the court considers all the relevant factors.

Dominic Grieve (Conservative, Beaconsfield)

The amendment, although itself minor and presented by the Minister as a minor matter, is of considerable importance. I am not sure why the draftsman and Minister were content with the existing wording of clause 255(6) but have now decided that it is no longer sufficient. The hon. Gentleman highlighted the difference between recoverable and associated property. Associated property is property into which recoverable property has become mixed or in some way associated. It will include property that belongs to another person and will not be subject to recovery. At the preliminary stage, the court must carry out an exercise to balance the need to ensure that the state may recover what it is seeking with the rights of the individual who will be adversely affected.

As we discussed this morning, there are areas in clause 255 in which we explored the balance that should exist regarding individuals' rights in the face of a receiving order. Clause 255(6), as amended, will substantially shift the balance on actions relating to exclusions toward the state and away from the rights of the individual—specifically, the innocent individual who has an interest in the associated property. I concede that it is just possible that such an individual may have recoverable property and be culpable. However, the chances are that he will be an innocent party.

The amendment is quite minor, but it would extend the statement, with which I cannot possibly take exception, that the satisfaction of any interest or right of the enforcement authority to recover recoverable property must be paramount, to a paramountcy on the balance when the state might be prejudiced if the rights of a person with an interest in the associated property were adversely affected.

Clause 255(6) states:

''The power to make exclusions in relation to recoverable property''—

we are taking that out—

''must be exercised with a view to ensuring, so far as practicable, that the satisfaction of any right of the enforcement authority to recover the property obtained through unlawful conduct is not unduly prejudiced.''

The exclusion of associated property clearly implied that it was accepted that it might be necessary to prejudice the rights of the enforcement authority if that was required to support the rights of the associated property owner.

The Minister has not explained why this change of heart has occurred. I shall be grateful if he does because, at present, I am minded to oppose the amendment.

Bob Ainsworth (Labour, Coventry North East)

I did not think that I was insisting that the rights of the enforcement agency would be paramount in the case of associated property. As I said, I thought that the amendment would allow the

court to take that into consideration. I hope that the hon. Gentleman will accept that that is sensible, and that he will not think that the rights of the enforcement authority can be ignored in every case of associated property.

Dominic Grieve (Conservative, Beaconsfield)

Perhaps the use of the word ''paramount'' is an exaggeration.

We discussed how undesirable it was to fetter judicial discretion. Clause 255(6) tells the courts how they should exercise their discretion when making exclusions. Previously, they were told that their discretion should be fettered in relation to recoverable property only, but now it must be fettered in relation to associated property, and the courts must act in a way that is in favour of the enforcement authority and against the individual who may be adversely affected if an exclusion order is not made.

Bob Ainsworth (Labour, Coventry North East)

The hon. Gentleman is retreating from the word ''paramountcy'', but he is still insisting on a slant that is not justified by the wording of clause 255(6), which states:

''The power to make exclusions in relation to recoverable property''—

the amendment would extend the power to all property, whether recoverable or associated—

''must be exercised with a view to ensuring, so far as practicable, that the satisfaction of any right of the enforcement authority to recover the property obtained through unlawful conduct is not unduly prejudiced.''

Although the hon. Gentleman has come off the word ''paramountcy'', he appears to suggest that the use of the words ''not duly prejudiced'' means that that right is more important than that of the owner of the associated property.

The change in wording is not intended to achieve a shift in policy. We are trying to address an oversight, because the current wording would not allow the court to take into account the rights of the enforcement authority unless recoverable property was being dealt with. I hope that the hon. Gentleman accepts that even where associated property is involved, the court must at least consider whether the enforcement authority has rights. In separating out such property, something of no value should not be left.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister for giving way, as dialogue is helpful.

It is not the case that, without the Minister's amendment, the court would not have to exercise discretion with regard to the matter. The entire clause sets out a series of discretionary provisions that are designed to strike a balance when receivership is made. It is inherent in subsection (6), as it is currently worded, that it is open to the court to hold that an exclusion should be made in respect of associated property, if that is required to fulfil the necessary criteria under subsections (2) and (3) in favour of a person who holds associated property, even if, as a result of that, a considerable level of prejudice is caused to the ability of the enforcement authority to

recover the recoverable amount within that associated property. That is a fair principle, and the Minister is going to get rid of it.

Bob Ainsworth (Labour, Coventry North East)

We are discussing provisions where a bona fide purchaser for value is completely protected: we are dealing with property that has become mixed with recoverable property. The hon. Gentleman appears to be suggesting that we can completely ignore the enforcement authority's rights, when it is seeking to deal with such property, even to the point where it does not matter—according to my reading of subsection (6)—that the enforcement authority's rights are unduly prejudiced. That does not matter to him, and he is suggesting that that is fair.

Dominic Grieve (Conservative, Beaconsfield)

I accept that that is a possible result of leaving subsection (6) as it stands. However, that subsection is part of the total package of clause 255, which includes the specific provision, under subsection (3), of good reasons for making an exclusion. They are,

''(a) to meet his reasonable living expenses, or

(b) to carry on any trade, business, profession or occupation''.

Circumstances will arise where the restraint order will bite on associated property, with the consequence that, prior to that property's being disentangled at the final hearing, the person who owns a large chunk of it may be unable to make his living. He will apply for an exclusion. Subsection (6) currently provides a considerable weight of balance in his favour when that matter comes to be considered. The Minister's change in wording moves the balance in favour of the enforcement authority. Is that fair?

Bob Ainsworth (Labour, Coventry North East)

I do not accept that it moves the balance in favour of the enforcement authority. The hon. Gentleman keeps on creeping back towards paramountcy. He appears to be suggesting that an exclusion order should be granted to allow a person to continue his trade, business, profession or occupation—for example—even if allowing him to do so would unduly prejudice the rights of the enforcement authority. That seems, in effect, to be what he is insisting on, and if that is the case, I do not agree with him.

Question put, That the amendment be made:—

The Committee divided: Ayes 13, Noes 4.

Roger Gale (Conservative, North Thanet)

It would help if hon. Members would pay attention. I know that we are nearing the end of the sitting, but I remind them that we have 30 clauses to consider by 7 o'clock.

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

Question agreed to.

Clause 255, as amended, ordered to stand part of the Bill.

Clause 256 - Restriction on proceedings and remedies

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 357, in page 149, line 32, after 'receiver', insert

'and any other affected party'.

The clause imposes

''Restriction on proceedings and remedies''.

Subsection (1) states:

''While an interim receiving order has effect—

(a) the court may stay any action, execution or other legal process in respect of the property to which the order applies,

(b) no distress may be levied against the property''.

Subsection (2) provides:

''If a court (whether the High Court or any other court) in which proceedings are pending in respect of any property is satisfied that an interim receiving order has been applied for or made...the court may either stay the proceedings or allow them to continue on any terms it thinks fit.''

Subsection (3) states:

''Before exercising any power conferred by subsection (2), the court must give the enforcement authority and (if appointed) the interim receiver an opportunity to be heard.''

I am in favour of giving the enforcement authority and the interim receiver the opportunity to be heard, but what about the other side? The amendment would allow ''any other affected party''—the Minister will note the consistency of my approach; I use the word ''affected'' rather than ''interested'' party—to make representations to the court. Is it intended that, under the Bill, only the interim receiver or the enforcement authority may make representations? I find that strange. In circumstances in which there are bound to be other affected parties, they, too, should be entitled to make representations.

The amendment is minor and I do not believe that it would prejudice the outcome of the proceedings. The amendment does, at least, ensure fairness. If I have misunderstood the position and other affected parties are also able to make representations under a provision that is not spelt out in the clause, I should be happy to be reassured to that effect. Unless the Minister can reassure me about that, it seems to me that my amendment would be a valuable safeguard that would ensure that the court obeys the usual rules of hearing the other side.

Bob Ainsworth (Labour, Coventry North East)

Let us see the degree to which I can satisfy the hon. Gentleman. Subsection (2) provides that any court in which other proceedings are pending in respect of property subject to an interim receiving order may stay proceedings or impose its own terms on how those proceedings should continue. Before exercising that power, the court must give the enforcement authority and the interim receiver the right to be heard. As the hon. Gentleman said, the amendment would give any other party affected by the proceedings the right to be heard. The clause is intended to cover the situation where a civil recovery procedure and other proceedings are ongoing in respect of the same property. In such circumstances, the parties to the other proceedings will have had an automatic right to be heard, before the court exercises any power conferred under subsection (2) to stay the proceedings or to allow them to continue. We envisaged that those parties would include the respondent to civil recovery proceedings, as the respondent will be holding the property concerned. Those parties might also include holders of associated property, who may, for example, hold an interest in the property, subject to the proceedings.

In addition, clause 256(3) will give the enforcement authority and the interim receiver the right to be heard before the court takes its decision. The amendment would require the court to give any other party affected by either set of proceedings a right to be heard. It appears that the main people affected by either set of proceedings already have the right to be heard by the court, before it exercises any powers under clause 265(2). We are not sure, therefore, that the amendment is needed. However, the hon. Gentleman has raised a point that we will consider further, to see whether there are any affected parties who should have the opportunity to be heard by the court but who currently have no right to be heard. If, as a result of that process, we identify any gap, we will table an amendment on Report to cover it. With that assurance, I invite the hon. Gentleman to consider withdrawing his amendment.

Dominic Grieve (Conservative, Beaconsfield)

Yes, I will. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 256 ordered to stand part of the Bill.

Clause 257 - Exclusion of property which is not recoverable etc.

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 384, in page 150, line 3, leave out from 'that' to the end of line 5 and insert

'it is just so to do'.

The clause deals with the exclusion of property that is not recoverable. Subsection (3) states:

''The court may exclude any property within subsection (2) on any terms or conditions, applying while the interim receiving order has effect, which the court thinks necessary or expedient.''

The amendment would replace that with

'it is just so to do'.

On a previous occasion, members of the Committee debated the use of expressions and, in particular, the word ''appropriate''. The Minister and I were poles apart. I said that I did not like the use of the word ''appropriate'' and that I preferred the word ''just''. The reason for that was that the word ''appropriate'' covered administrative convenience. Under subsection (3), the wording is even more heavily weighted towards administrative convenience. What do the words ''necessary or expedient'' mean? How do they square with the principles of justice? If the words ''necessary or expedient'' mean the same as ''just so to do'', let us have ''just so to do'' because that is a better form of words. If they do not, there is a distinct difference in meaning between ''just so to do'' and ''necessary or expedient''.

I worry about the word ''expedient'', because that which is expedient is not necessarily fair or just. Subsection (3) refers to whether property that is not recoverable should be excluded. Subsection (1) states:

''If the court decides that any property to which''—

Roger Gale (Conservative, North Thanet)

Order. I have been listening carefully to the hon. Gentleman. Far be it from me to quarrel with his legal expertise, but it appears that he is speaking to subsection (3), whereas his amendment appears to apply to subsection (2). I am perfectly happy for the hon. Gentleman to broaden the debate slightly, on the understanding that there will not be a stand part debate. However, in the interests of marshalling his argument, he may wish to review his position.

Dominic Grieve (Conservative, Beaconsfield)

I am very grateful, Mr. Gale, and I apologise profusely to the Committee. I am having to consider whether the error is in my reading, or in my amendment, which I drafted late at night as usual, or whether I intended it to refer to subsection (3). I am sure that I have made an error in identifying the line in which the amendment was supposed to feature, but I am bound to say that I intended to amend subsection (3) for the reasons that I have given—to change ''necessary or expedient'' to ''just so to do''. I am reinforced in that view by the fact that my manuscript note is against the passage concerned. I apologise to the Committee and the Minister, who will have notes prepared with reference to something entirely different. Indeed, I was just trying to look at subsection (2) to see whether it would make sense to make the amendment—

Roger Gale (Conservative, North Thanet)

Order. With respect, the hon. Gentleman cannot move an amendment that is not on the amendment paper. It might be for his convenience to consider not moving it, and engage in the debate that he wants on clause stand part, which would give the Minister the opportunity to reply. Although that would not create an amendment, it would allow the Minister to give any assurances that he wants to give.

Dominic Grieve (Conservative, Beaconsfield)

I can only apologise further. It is clear that I am in a muddled condition. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

Bob Ainsworth (Labour, Coventry North East)

The clause contains provisions that are intended to ensure that property does not remain subject to an interim receiving order unnecessarily. Clause 254, which we have already discussed, provides that the court has the power to vary or set aside an interim receiving order at any time. Clause 257 makes further specific provision for the court to vary an order so that certain properties are excluded from the proceedings altogether. It covers two situations: those in which the court decides before the final trial of the action that the property to which the order applies is neither recoverable property nor associated property, and those in which the court thinks that alleged associated property could be excluded from the terms of the interim receiving order without prejudicing the director's right to recover property. The clause therefore provides useful safeguards.

Clearly, property that is neither recoverable nor associated property should not remain the subject of an interim receiving order once it has been established that that is the case. The court may decide that following an application by an interested person, or in response to a report from the interim receiver made under clause 258. If it so decides, it will be required to exclude the relevant property from the terms of the interim receiving order, which could apply to all of the property subject to the order or just some of it. Property that is alleged to be associated property may be in the hands of persons who are willing to co-operate with the proceedings, and who have no interest in frustrating the future making of a recovery order. When that is the case, there may be no need to apply an interim receiving order to such property. The court may therefore exclude from the terms of the interim receiving order alleged associated property, if it thinks that the property may be excluded without prejudice to possible further rights of the director to recover recoverable property. If the court decides to vary the order so as to exclude associated property, it may apply terms and conditions that it believes necessary or expedient, which may remain in force while the order has effect. The clause ensures that interim receiving orders will be reviewed as necessary and that property found not to be recoverable or associated is removed from the ambit of an order. It will allow the removal of alleged associated property from the terms of the order without prejudicing the director's right of recovery.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister for his clear exposition of the clause. I apologise again to the Committee. I now have the opportunity to reread the provision, instead of moving rapidly from one amendment to another. Perhaps when I drafted the amendment, at 1 o'clock in the morning or whenever it was, I considered tinkering with both subsections (2) and (3). I appreciate that the earlier amendment that I did not move could have been made to subsection (2) in order to achieve a similar impact to the one that I

hoped to achieve in subsection (3). A general point is involved that, in a funny way, applies to either; we might consider it.

I realise that the purpose of the clause is to provide a measure of relief in cases in which the court decides that an interim receiving order should be varied so as to exclude property, especially associated property. As the Minister is aware, that takes us back to our discussion of a few minutes ago.

Under subsection (2), the varying of an interim receiving order

''so as to exclude from the property to which the order applies any property which is alleged to be associated property''

is not based on whether the court believes that it is just to do so but gives primacy to not prejudicing the enforcement authority's ability to recover the property. In a sense, we are duplicating our earlier discussion.

Under subsection (3), on the other hand,

''The court may exclude property within subsection (2) on any terms or conditions, applying while the interim receiving order has effect, which the court thinks necessary or expedient.''

That is the point at which I tried to tinker with the provision. Although I developed the argument in relation to the wrong amendment a few minutes ago, the amendment that I developed to subsection (3) was the better of the two amendments and better than messing around with subsection (2). Subsection (3) defines the basis on which subsection (2) should operate.

I simply voice that anxiety. I certainly will not resist the incorporation of the clause into the Bill, but I ask the Minister to consider carefully, especially in relation to subsection (3), whether the words ''necessary or expedient'' are correct, for the reasons that I explained in my failed argument a few minutes ago.

The court should decide to exclude property on the basis of justice between the parties, especially in relation to the party who has an interest in associated property that may be prejudiced. I do not know whether the Minister and his draftsman can do that, but I ask him to consider the matter.

Bob Ainsworth (Labour, Coventry North East)

I do not know whether the hon. Gentleman has considered that some of the amendments with which he has been tinkering might have an effect that he does not necessarily intend. Perhaps he will reflect on that, and I shall reflect on his point.

We are dealing with property that is still in dispute. Some of the suggestions that the hon. Gentleman makes might remove the requirement to continue to consider the director's or enforcement authority's right in that dispute. The hon. Gentleman may be thinking of individuals who own associated property and who are not willing to co-operate in the proceedings and he may be thinking that, despite that lack of co-operation, they should have the ability to unfreeze the property to their benefit. I am not dead sure that that is what he wants to achieve, but I shall look into the matter with regard to the amendment that he tabled. We want to give the court the discretion

to unravel such matters and take into account the rights of the director and others. I accept that that is a rerun of an earlier debate.

Dominic Grieve (Conservative, Beaconsfield)

The Minister was correct to say that the director and the enforcement authority have rights. After all, they are bringing the action and they wish to recover recoverable property. I am worried about the innocent individual with associated property who is caught up in the process. Such a position has applied to several clauses that we have discussed, in that the balance is tipped firmly in favour of the director and the enforcement authority against that of the individual. That is why the use of the word ''just'' seemed to go some way to redress that balance in the way in which the court exercises its discretion to exclude property under subsection (2). Clearly, I failed dismally to achieve my objective under the previous amendment.

Bob Ainsworth (Labour, Coventry North East)

Given the mix-up between the hon. Gentleman and myself, I agree to consider the issue.

Question put and agreed to.

Clause 257 ordered to stand part of the Bill.

Clauses 258 to 262 ordered to stand part of the Bill.

Clause 263 - Restrictions on dealing etc. with property

Clause 266 - Reporting

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

I beg to move amendment No. 407, in page 153, line 34, leave out 'receiving' and insert 'administration'.

This is a purely drafting amendment. It is designed to ensure that the correct Scottish term ''administration'' is used in the clause, instead of the English and Welsh term ''receiving''.

Amendment agreed to.

Clause 266, as amended, ordered to stand part of the Bill.

Clause 267 - Recovery orders

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 389, in page 154, line 3, leave out 'may' and insert 'must'.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to take the following amendments:

No. 390, in page 154, line 5, leave out first 'and' and insert 'or'.

No. 392, in page 154, line 15, leave out subsection (4)(c).

No. 393, in page 154, line 17, leave out subsection (4)(d).

No. 391, in page 154, line 24, leave out paragraph (b).

Clause stand part.

Dominic Grieve (Conservative, Beaconsfield)

The clause deals with recovery orders and the vesting and realisation of recoverable property. It states:

''If in proceedings under this Chapter the court is satisfied that any property is recoverable, the court must make a recovery order...The recovery order must vest the recoverable property in the trustee for civil recovery...But the court may not make in a recovery order—...any provision in respect of any recoverable property if each of the conditions in subsection (4) is met and it would not be just and equitable to do so, or...any provision which is incompatible with any of the Convention rights (within the meaning of the Human Rights Act 1998''.

As the Minister will remember, in our debate last week I expressed an opinion that the 1998 Act should be specifically referred to in view of the fact that the front of the Bill states that it is human-rights compliant. I cannot recollect previously having heard the 1998 Act referred to as a fetter on a power that a Bill intended to confer on courts.

Subsection (4) goes on to deal not with the bona fide purchaser for value without notice, who is protected elsewhere in this part, but with the bona fide obtainer of property. The subsection sets out four conditions that must be fulfilled before the court may decide not to make a recovery order. It would be worth while for the Committee to consider them:

''The conditions...are that—

(a) the respondent obtained the recoverable property in good faith,

(b) he took steps after obtaining the property which he would not have taken if he had not obtained it or he took steps before obtaining the property which he would not have taken if he had not believed he was going to obtain it,

(c) when he took the steps, he had no notice that the property was recoverable,

(d) if a recovery order were made in respect of the property, it would, by reason of the steps, be detrimental to him.''

Subsection (5) states:

''In deciding whether it would be just and equitable to make the provision in the recovery order where those conditions are met, the court must have regard to...the degree of detriment''

''the enforcement authority's interest in receiving the realised proceeds''.

This is an important clause. I tabled some amendments to it, and they have been grouped together. That is sensible, because it enables us to consider the clause as a whole, but that does not mean that I shall push every amendment equally.

I start with amendment No. 389, which in some ways is the most important amendment. It would substitute the word ''must'' for ''may'' in the phrase

''the court may not make in a recovery order''.

That would make the provision mandatory. If that were done, ''must'' would nevertheless be heavily qualified by the subsequent wording that I read out.

That would prohibit the court from making a recovery order if the conditions under subsection (4)(a) to (d) were met.

Let us assume that a case met all the conditions in subsection (4). Can the Minister realistically think of any circumstances in which it would still be just to deprive the innocent party of his property, and, moreover, in which that would still be compatible with the European convention on human rights? If my argument has any force, it would be sensible to substitute ''must'' for ''may''.

Norman Baker (Liberal Democrat, Lewes)

I just wondered whether it was a matter of linguistics. The phrase ''may not'' could be read as an instruction. The phrase, ''You may not do this'' is a prohibition. The word ''may'' is permissive, but ''may not'' is prohibitive. I wonder whether the hon. Gentleman's point, which is valid in his argument, is covered by the word itself.

Dominic Grieve (Conservative, Beaconsfield)

The hon. Gentleman makes a good point, but I am not entirely persuaded by it. If he is right, why should not we have the words ''must not''? In that case, the Minister would have no difficulties in conceding the issue. I inferred from the use of the words ''may not'' that the provision was trying to leave some latitude to the court in such circumstances. If the Minister reassures me that no such latitude was intended to be given—he could do that by way of an intervention—I shall not pursue that amendment. Does the Minister wish to intervene?

Bob Ainsworth (Labour, Coventry North East)

Only to agree with the hon. Member for Lewes (Norman Baker) that the change of words would make absolutely no difference.

Dominic Grieve (Conservative, Beaconsfield)

The Minister should consider changing the word, as ''must'' has a far more mandatory ring to it than ''may''. However, I shall move on to the other amendments.

Bob Ainsworth (Labour, Coventry North East)

The hon. Gentleman has had his victory for today; he cannot have another.

Dominic Grieve (Conservative, Beaconsfield)

There is no harm in asking, and ''must'' is the better word.

Amendment No. 390 is a wider amendment, because it would allow the court, notwithstanding that the criteria of subsection (4) were not fulfilled, a residual discretion not to make the order.

We have discussed judicial discretion. I have said that, if all of the four tests laid down in subsection (4) were to be met, it would be impossible to envisage circumstances in which an order could fairly be made—I think that the Minister agreed with that. However, what would be the situation if some of the tests could not be met? The recoverable property might have been obtained in good faith by someone but, for instance, he might be unable to show that, when he took the steps, he had no notice that the property was recoverable. In those circumstances, might it be appropriate for the court to be unwilling to make the

order? With regard to those circumstances, the only protection at the moment would be incompatibility with the Human Rights Act.

At what point does one know that property is recoverable? Let us consider an example. Someone might have property in his possession that is associated—it is mixed in with his own property. That person has to live, and to operate. Before proceedings have been commenced, a rumour might start to float abroad that the property that he has held completely innocently, might be of interest to the Assets Recovery Agency. He has to deal and operate in that property to live; he has no other option—if he does not complete a deal, he may lose out. After proceedings have started, he fulfils all the criteria of subsection (4)(a) to (d), but it is alleged against him, ''When you took some of those steps, you should have known, even though you came by that property innocently and had taken steps in relation to it, that it was recoverable.'' He will fulfil the condition in subsection (4)(d), because he will be able to establish that it would be highly detrimental to him for the property to be removed and recovered by the enforcement agency. In those circumstances, should his only protection be the European convention on human rights and the Human Rights Act? I suggest that it should not be necessary to invoke them, and that the sensible course of action would be to allow him to rely on a judicial discretion, which would be provided by amendment No. 390.

Amendments Nos. 390, 392, 393 and 391 are alternative ways of approaching the matter, by tinkering around with some of the clauses. In light of the debate that we are having and the importance of amendment No. 390, it will not be necessary to press the amendments because they are simply illustrations of the way in which the clause could be altered by removing subsections. The amendments were designed to probe, and to stimulate discussion. Each amendment, if made, would affect what is possible and what is not.

I shall not press the amendments because the key amendments are amendment No. 389, which the Minister assures me is not required, and amendment No. 390, which would provide a measure of judicial discretion. I invite the Minister to concentrate on the latter.

Bob Ainsworth (Labour, Coventry North East)

The hon. Gentleman invites us to consider how narrow the criteria that a person must meet are, and says that if all the criteria were met, all that would save a person from a recovery order would be the provisions of the European convention on human rights. He says that there should be a wider safeguard than that. Indeed, he spoke about a person against whom proceedings have not been started but about whom stories go around.

We are discussing what happens after a court has decided that there is recoverable property. The hon. Gentleman said that we were not discussing bona fide purchasers for value because they were dealt with elsewhere. Yes, they would have been dealt with in the court case. They would have had an opportunity to

show the court that they were bona fide purchasers for value. If they had successfully shown that, they would not be considered at this point.

The hon. Gentleman asks for a broad safeguard after the decision has been taken. The safeguard for bona fide purchasers for value would be there because it would be present during the court proceedings when a decision was taken. We are discussing how the matter is dealt with after the court has taken the decision and decided how to deal with recoverable property that has been identified. That is the reason for the narrowness of the safeguard and the stipulation that all the different requirements be met. I am not sure that the hon. Gentleman portrayed that when he moved the amendment. We are not dealing with a totally innocent person who has been accused.

Amendment No. 389 would replace the word ''may'' with the word ''must'' in the first line of subsection (3), so that the phrase would read

''the court must not make''

rather than

''the court may not make''.

The amendment would have no effect on the meaning or the clarity of the subsection. However, although it would not make the subsection any worse—I will not argue with the hon. Gentleman about that—there is no need for change. If he argues for change, he must prove the need for it.

Amendment No. 390 would have two effects. First, the court would always be prevented from making a civil recovery order in a bona fide case of change of position. The provisions of subsection (3) envisage that such cases should attract exemption only to the extent that the civil recovery would not be just and equitable. Secondly, the amendment would introduce an entirely new exemption that would not be limited to bona fide change of position cases, in which civil recovery would be prohibited anyway, in which it would not be just or equitable to make the recovery order. In effect, that would convert civil recovery from a mandatory remedy to a discretionary one. The court would have to decide in every case whether it felt that the recovery of criminal proceeds was just and equitable.

Norman Baker (Liberal Democrat, Lewes)

I have listened carefully to the Minister and he seemed to suggest that he wanted a mandatory regime rather than a discretionary one. As I understand it, that is why he is objecting to amendment No. 390, which would insert some discretion by replacing ''and'' with ''or''. In that case, why are the words

''it would not be just and equitable to do so''

included at all? What is their function? Are they intended to provide discretion and, if so, how is it that discretion fettered? If the Minister is really arguing for a mandatory clause, surely the words should not be there at all.

Bob Ainsworth (Labour, Coventry North East)

The phrase applies only when considering the other issues dealt with in subsection (4). It is not intended to provide discretionary ability. The court decides whether there is recoverable property, after it has heard the case for and against. In

those circumstances, when the court has decided that there is recoverable property the recovery is mandatory. The circumstances that we are dealing with are those in which people have taken actions after that, because they have received recoverable property that they did not know was forfeit, or they anticipated that they would receive that, and they have suffered detriment, and it would not be just and equitable to continue to recover property in those circumstances. That is the barrier over which the individual must climb. He must be able to show that all those things are the case in order to obtain the exemption that the clause provides. The clause is not intended to provide discretion on the recovery in the first place—that is the court's decision, and the rest flows from that.

Norman Baker (Liberal Democrat, Lewes)

Subsection (4) sets out four tests, and there must doubtless be a factual assessment of whether the tests in paragraphs (a), (b), (c) and (d) are met. The phrase,

''it would not be just and equitable''

is not included with those facts in subsection (4). That phrase is slotted elsewhere in the clause, in subsection (3). That suggests that it is a matter not of fact but of discretion.

Bob Ainsworth (Labour, Coventry North East)

The hon. Gentleman is absolutely right about the structure of the clause. However, the effect of the clause is that five tests must be met. Four of those are contained in subsection (4), but the ''just and equitable'' test would also have to be met. Therefore it is a narrow area, and the effect is that all five of the tests would have to be met. I am not denying that.

I am not sure what the hon. Gentleman is arguing for. Although he is pointing out things in the clause, he is not making an argument, other than that the confiscation should be discretionary. As I said, that is not the Government's position. We believe that when the decision has been taken, the recovery should be mandatory. We should provide people with safeguards in those limited circumstances in which, in effect, all five of the tests are met—the ''just and equitable'' test as well as the four objective tests laid out in subsection (4). The hon. Gentleman does not appear to agree with me.

Amendment No. 391 would remove the obligation on the court, when it is considering whether making a recovery order would be just and equitable, to have regard to the enforcement authority's interest in recovering the property.

Dominic Grieve (Conservative, Beaconsfield)

To make the position clear, amendments Nos. 392, 393 and 391 went together. They would have reduced the condition that the respondent obtained the recoverable property in good faith. The alternative approach would be amendment No. 390, which would substitute ''or'' for ''and'' before the words

''it would not be just and equitable to do so''.

On balance, I prefer that amendment, which is why I did not want to trouble the Minister unnecessarily.

Bob Ainsworth (Labour, Coventry North East)

In that case, let us turn to amendment No. 390. We oppose it. The Government do not agree that a respondent who satisfies the criteria under subsection (4) should have an automatic exemption from civil recovery. Those criteria constitute a standard defence in civil law. The defence does not attract automatic exemption elsewhere and we do not consider that it should do so under the clause. Indeed, the courts have specified that the defence should be developed on a case-by-case basis. When the criteria in subsection (4) are met, the court must retain the ability to exercise its judgment in the light and circumstances of the case.

Let us suppose that the respondent has spent money on an expensive cruise, and would not have done so had he not received as a gift some very valuable jewellery that transpires to be the proceeds of another person's unlawful conduct. Whether the respondent should be allowed to keep the jewellery must surely depend on the circumstances, including the degree of detriment that he will suffer if it is recovered. If he is wealthy, the court may think that the detriment that he will suffer is small and is outweighed by society's entitlement to recover the criminal proceeds. Why, after all, should he be allowed to benefit from them? If, however, the recovery of the jewellery would throw him into penury and prevent him from maintaining his mortgage payments, leading to the loss of his home, the court may decide that he should be allowed to keep the jewellery.

There may be intermediate cases, in which the court decides that some, but not all, of the jewellery should be recovered. That is why subsection (3) is drafted as it is. It requires the court to consider whether recovery would be just and equitable and, in doing so, to weigh up the enforcement authority's interest in recovering the property on one hand, and the degree of detriment that would be suffered by the respondent on the other.

Norman Baker (Liberal Democrat, Lewes)

Can the Minister explain the reason for subsection (3)(b)? Surely it is axiomatic that, throughout the Bill, all provisions have been assessed for compatibility with the Human Rights Act 1998. The phrase that is used in subsection (3)(b) does not appear throughout the Bill with regard to every provision, so why has it been thought necessary to include it in clause 267? Is there a specific point to be made, or is subsection (3)(b) redundant?

Bob Ainsworth (Labour, Coventry North East)

Let me finish dealing with amendment No. 390, which was the main concern of the hon. Member for Beaconsfield (Mr. Grieve). We may then talk about why the Human Rights Act appears in the clause but nowhere else in the Bill.

I am sure that the correct approach is to allow the court to use its discretion, and to look at both sides of the argument when it is examining whether the respondent has suffered a bona fide change of position. We do not agree that civil recovery should be converted to a wholly discretionary order. That is the second, and even more wide-reaching, consequence of the hon. Gentleman's amendment. It seems to us that people seeking to hang on to the proceeds of unlawful

conduct should be allowed to do so only in the limited and clearly defined circumstances that we have proposed. As I have said, the criteria are based on standard civil defences in other cases. Those are our main reasons for opposing amendment No. 390.

The hon. Members for Beaconsfield and for Lewes asked why the European convention on human rights was mentioned in subsection (3)(b) of the clause, but not elsewhere in the Bill. It is mentioned there because there is a duty to make a recovery order that is mandatory at that point. Potentially, that could conflict with the court's duty under section 6(3)(b) of the Human Rights Act, which makes it clear that that duty takes priority. Because we are insisting that the confiscation procedures are mandatory, we felt that it was appropriate to make it clear that the provisions of the Human Rights Act were none the less the overriding consideration in such policy. I think that I have dealt with the substantive point made by the hon. Member for Beaconsfield in connection with amendment No. 390, and I ask him to consider withdrawing the amendment.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister for his explanation. Speaking personally, I should be more reassured by the use of the word ''or'' rather than the word ''and''. I appreciate his point, and I suppose that I can rely on the Human Rights Act when an individual does not fall within subsection (4). It is odd, however, that the hon. Gentleman explicitly acknowledges the presence of the Human Rights Act, given that the only reason why the Bill refers to it is the acknowledgment that subsection (4), with its tightly drawn provisions, might turn out to be incompatible with it. If that were not the position, there would be no reference to the Act in the clause. However, if the amendment were accepted, it would provide a fall-back position for the court, which took the view that notwithstanding the strict fulfilment of the tests under subsection (4), it would still not be just and equitable to allow recovery to take place. That is the issue between us.

Paul Stinchcombe (Labour, Wellingborough)

I wonder whether, by a side wind, the hon. Gentleman's amendment could bring about a situation in which it was not just or equitable for such action to take place, yet the conditions under subsection (4) were satisfied none the less.

Dominic Grieve (Conservative, Beaconsfield)

The hon. Gentleman makes a good point. It could be argued that a better amendment would be longer-winded than my amendment, and the clause would say:

''any provision in respect of any recoverable property if each of the conditions in subsection (4) is met and it would not be just and equitable to do so, or''

that it would not on some other grounds be just and equitable to do so. I listened particularly to what the Minister said, and as our argument developed, it struck me that the removal of the linkage between subsection (4) and the words ''just and equitable'' was undesirable. As the hon. Gentleman may have

appreciated, that was not my intention. I wanted to allow for a further possibility, not to reduce the force of the original one. That is one of the reasons why I shall withdraw the amendment. I acknowledge that as it stands, it would not completely meet my objective. However, will the Minister consider the issue, because we may revisit it?

Bob Ainsworth (Labour, Coventry North East)

We shall have a very happy Christmas.

Dominic Grieve (Conservative, Beaconsfield)

The Minister will have a very happy Christmas: he will be helped by many officials to consider my argument. As for my Christmas, I am informed that on 4 January I will have to think about the next set of amendments to table for our return to the Committee. [Interruption.] I reassure the groaning hon. Member for Birmingham, Hall Green (Mr. McCabe) that our proceedings in Committee will end on 5 February—I am grateful to have received some sympathy from Labour Members. I shall also think again and consider whether this matter should be reviewed on Report by way of a better-worded amendment. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 267 ordered to stand part of the Bill.

Clause 268 - Functions of the trustee for civil recovery

Dominic Grieve (Conservative, Beaconsfield)

I tabled an amendment to the clause, but it was not selected. My inquiries revealed that, like many other amendments that I have tabled in the course of the Committee, it was not selected because it was thought to be unnecessary, as it stated something that was already included in the Bill. I raise that question now so that we may have the Minister's assurance on the record.

Subsection (1) states:

''The trustee for civil recovery is a person appointed by the court to give effect to a recovery order.''

Under subsection (2),

''The enforcement authority must nominate a suitably qualified person for appointment as the trustee.''

I assume that the court has the discretion to reject the nominee. My amendment was designed to make that clear. Those who know much more than I do about the drafting of legislation take the view that that is almost certainly the case—indeed, they are convinced—but a reassurance from the Minister in the pages of Hansard will provide that extra degree of assurance. Could the court reject the receiver nominated by the enforcement authority?

Bob Ainsworth (Labour, Coventry North East)

The hon. Gentleman may be assured that that is the case.

Question put and agreed to.

Clause 268 ordered to stand part of the Bill.

Schedule 4 - Powers of trustee for civil recovery

Mark Field (Conservative, Cities of London and Westminster)

The schedule mentions compromise. I wonder what power the trustee has under paragraph 5, which refers to

''compromise or other arrangement in connection with any claim relating to the property.''

I wonder whether the Minister would elucidate, because it seems that the trustee has been stripped of power. In particular, I am slightly concerned about the position of third parties. Can the Minister clarify what the Government had in mind on the subject of compromise on the part of the trustee, and whether the passage is part of some standard documentation on trustee powers, which is found in similar Acts?

The rest of the debate is in Hansard.