Orders of the Day — Proceeds of Crime Bill — [1st Allotted Day]

House of Commons, 26 February 2002.

Schedule 1 — Assets Recovery Agency

Bob Ainsworth (Labour, Coventry North East)

I beg to move amendment No. 77, in page 260, line 23, leave out "a senior official" and insert—

'an assistant to the Director'.

Alan Haselhurst (Deputy Speaker, Saffron Walden)

With this it will be convenient to discuss the following amendments: Government amendment No. 78.

No. 174, in page 261, line 32, at end insert—

'(3A) For the purposes of sub–paragraph (3), there shall be no more than 10 performance targets for any financial year and those targets shall relate specifically to the functions of the Agency.'.

Government amendment No. 79.

No. 196, in clause 4, page 3, line 6, at end insert—

'(1A) Such co–operation shall take place in accordance with the provisions of other enactments.'.

Government amendment No. 89.

Bob Ainsworth (Labour, Coventry North East)

In Committee, we discussed whether the title "senior official" was appropriate for the member of the agency who would be responsible for exercising the director's functions in Northern Ireland, and I agreed to reflect further on the issue. Amendment No. 77 is the result.

We were not attracted by the title "deputy director", which was suggested in Committee, as it would leave scope for confusion. The term "deputy" would imply that the person would act as a substitute for the director on the whole range of his functions. However, the title "assistant director" would avoid such confusion, while reflecting the importance of the agency's work in Northern Ireland. As I said in Committee, the director would have to consult the Secretary of State for Northern Ireland before making that appointment. Amendment No. 78 will include that commitment in the Bill.

Amendment No. 174, in the name of Conservative Members, would mean that the director's objectives could include no more than 10 performance targets, and those would have to relate specifically to the agency's functions. The performance targets in the agency's annual plan will be drawn up by the director and must be approved by the Secretary of State. I explained in Committee that the targets will take into account the assets recovery strategy and the wider work of the assets recovery committee.

It is too early to say with certainty what those targets will be, but I shall share with hon. Members, as I did in Committee, our latest thinking on the measures that we ought to apply to the agency's output. They are likely to include the number of confiscation orders obtained by the agency and the value of those orders; the number of successful civil recovery actions and the amounts recovered through that route; the number of successful taxation cases and the amounts recovered; and the proceeds recovered as a percentage of the number of confiscation orders made, in respect of those cases for which the agency is responsible for enforcement. Some measure will need to be applied to international co-operation on confiscation matters, the performance of the centre of excellence and the agency's financial performance. We will also seek to include a measure of the agency's involvement with the Secretary of State's priorities and other Government priorities.

We do not want to restrict the director's ability to draw up targets. It is for the director to decide how many targets there should be, according to his priorities and what he thinks he and the agency will be able to deliver. To impose an artificial cap on the number or nature of targets at this point would be inappropriate.

I accept concerns expressed in Committee that the scope of clause 4(1)(b) is too broad. We concluded that everyone whom we would wish to be under a duty to co-operate with the director is already covered by subsection (1)(a), so Government amendment No. 79 proposes to delete subsection (1)(b); I hope that that deals with the points that were usefully made in Committee.

I do not know whether amendment No. 196, which was tabled by the Opposition, is the result of a misunderstanding of the Bill's intentions. The disclosure of information to the director will be governed by the provisions of part 10, so it is clear that clause 4 is not supposed to set out the rules on disclosure of information. The power in part 10 to disclose information to the director will be permissive; nobody will be required to disclose information. Anyone disclosing information can place restrictions on its further disclosure. The amendment would cause confusion about the extent of co-operation required under clause 4. We do not want people to be unsure about whether they can co-operate with the director; we do not want a conflict between the provisions of part 10 and other provisions on disclosure of information.

Government amendment No. 89 deals with clause 320's taxation powers, specifically inheritance tax appeals. All inheritance tax appeals are already reserved to the special commissioners, but the provisions of clause 320(2) and (3) on the assistance of expert assessors are not currently available for inheritance tax appeals. It would be highly desirable for the commissioners to have such assistance. The amendment would apply the same appeal system—specifically the potential for input from expert assessors—to all the director's tax functions.

I hope that that is sufficient, as I do not wish unnecessarily to prolong consideration of the amendments. I urge the House to accept Government amendments Nos. 77, 78, 79 and 89, and I hope that in the light of what I have said Opposition Members will not press amendments Nos. 174 and 196 to a vote.

Nick Hawkins (Conservative, Surrey Heath)

Opposition Front Benchers welcome Government amendments Nos. 77, 78 and 79. As the Minister said, and as other Members mentioned in our recent discussions on the programme motion, there was quite a lot of helpful and constructive co-operation between the Government and Opposition in Committee. It is fair to say that Government amendments Nos. 77, 78 and especially Government amendment No. 79, which deletes some inelegant phraseology, reflect that continuing co-operation. I am grateful to the Minister for accepting some of the arguments that we made in Committee.

We are disappointed, however, that the proposal in our amendment No. 174 was not included in the Government's further improvements to the Bill. As the Minister said, on 13 November last year we had a detailed debate in Committee about performance targets, which is recorded at columns 12 to 19 of the Official Report. Although he said that it may be premature to cap the number of performance targets, he may have forgotten what he said in Committee:

"I accept what the hon. Member for Surrey Heath (Mr. Hawkins) said about the number of targets and potential difficulties."—[Official Report, Standing Committee B, 13 November 2001; c. 14.]

He went on to express some of his misgivings in that regard.

We have specifically suggested a limit of 10 performance targets; under other legislation, the Government have imposed ridiculous numbers of targets in other law and order fields. In Committee, I mentioned police forces as an example and pointed out that the Government were seeking to impose as many as 58 performance targets on my force in Surrey. As the chief constable told me, such a number is ridiculous: no sensible organisation has 58 separate performance targets. All that such a large number of targets will do is create huge amounts of bureaucracy. The Government listened to some of the Opposition's complaints about the number of targets imposed on chief constables and police authorities, but they reduced the number from 58 to only 43, which is still far too many.

Amendment No. 174 seeks to bring some common sense to bear. We cannot conceive of any sensible organisation having more than 10 performance targets. The point of such targets is that they should concentrate on the nitty-gritty of an organisation's work. We have, therefore, sought once again to persuade the Government to limit that number. I have no doubt that this matter will arise again in another place if they continue to argue that organisations should be encouraged to concentrate on the main issues only by something as formal as performance targets. That does not mean that there will not be other things beyond such targets that everybody will want an organisation to do well; none the less, it cannot be sensible for any organisation to have more than 10 formal performance targets. It must also be absolutely clear that, whatever the targets are, they should be central to that which is germane to the work of the organisation. Only then will we have a sensible organisation that is not over-bureaucratic.

I am disappointed that the Minister has not yet been persuaded of the argument—but I have hope, given the constructive way in which he has responded previously, not only by tabling some of the other amendments in the group but by accepting amendments tabled by my hon. Friend the Member for Beaconsfield (Mr. Grieve) and I in Committee. As we shall see, that has happened not least by the Government adding their names to Opposition amendments. They have tried to be constructive when they have felt able to do so, and I still hope that amendment No. 174 will be yet another proposal on which they will accept in the end, perhaps in another place, that we have common sense on our side.

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

In his relatively brief speech, the hon. Gentleman has twice suggested that if he does not get his own way he will get the old boys along the Corridor to try to emasculate the Bill. Do the Conservatives intend to adopt that strategy throughout this process? If they do not get their own way here, will they try to block the Bill until they do so in another place?

Nick Hawkins (Conservative, Surrey Heath)

The hon. Gentleman has perhaps forgotten that in Committee, in relation to a similar amendment, he said:

"I support the thrust of the amendment, especially with regard to one subject."—[Official Report, Standing Committee B, 13 November 2001; c. 17.]

He went on to talk about its remit in relation to Scotland. I am rather disappointed to find that he seems to have changed his mind.

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

rose—

Nick Hawkins (Conservative, Surrey Heath)

I shall give way in a moment, when I have finished my point. The hon. Gentleman's contributions in Committee informed and amused us throughout our proceedings. As tributes have been paid to others for their work in Committee, I pay my own tribute to him for those constructive contributions.

We have no intention of using what the hon. Gentleman describes as the old boys along the Corridor to block the Bill. As he will remember from Committee, we have said throughout discussions on the Bill that we support its broad thrust and are trying merely to improve it. I hope that he will return to what he helpfully said at column 17 on 13 November in expressing his support for the thrust of an Opposition amendment that was similar to amendment No. 174. If he still wants me to give way, I shall do so.

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

How can I resist? The hon. Gentleman's compliments on my behaviour in Committee would have been much better received if I had not had to drag them out of him by intervening on him. As he has already twice mentioned the fact that he is going to take these matters to another place, and as the Conservatives raised this point consistently in Committee, may I take it that he is speaking on behalf of the hon. Member for Beaconsfield (Mr. Grieve) and himself when he says that it is not his intention to sabotage this measure in the Lords? Or is there a division on the Conservative Benches, as there was so often in Committee?

Nick Hawkins (Conservative, Surrey Heath)

The hon. Gentleman's memory must be playing him false. There were no divisions between me and my hon. Friend, and we have no divisions on this point. As my hon. Friend has rightly said, we are concerned that the Government might have overloaded the programme for today, and I do not want to detain the House further on this matter. We hope, however, that the Government will continue to consider it in the responsible and constructive way in which they have considered many other issues.

John Robertson (Labour, Glasgow Anniesland)

I pay tribute to the Opposition parties, and to how well they conducted themselves in Committee. I also welcome the three members of the Scottish National party to our discussions; I hope that they might contribute something for a change.

Annabelle Ewing (Scottish National Party, Perth)

I am pleased that the hon. Gentleman has extended a special welcome to us today. The fact is, we have been involved in this matter. We were not on the Standing Committee because we were not awarded a place. We had no place on the Committee of Selection, and we had to rely on the good will or otherwise of the Liberals to secure a place on the Standing Committee. Of course, they preferred to have two places for themselves, although, from looking at their attendance record, I see that they both managed to miss 15 or 16 sittings apiece. Perhaps there was a wasted place, and if the Liberals had not sought to have two places for themselves, they could have allocated one to the SNP—

Alan Haselhurst (Deputy Speaker, Saffron Walden)

Order. I think that we have a sufficiency of that matter on the record. May we please return to the amendment?

John Robertson (Labour, Glasgow Anniesland)

I am sure that my colleagues on the Liberal Benches will respond to the point made by the hon. Lady.

On amendment No. 174, the hon. Member for Surrey Heath (Mr. Hawkins) talked a great deal about targets. Although I have some sympathy with the Conservatives on targets—on many occasions, various bodies have to adhere to too many targets—limiting the number to 10 would cause different problems. Which 10 targets should we choose if there happened to be 12, or 20—who knows? Then again, there might only be five. If we talk about a specific number, such as 10, we might have to try to invent targets to get the total up to that number. I accept that the proposal was for a maximum of 10, but sometimes maximums have a habit of becoming actuals. That could be a problem.

Having read the Bill, I would have thought that the matter would be covered by schedule 1(8)(1), which requires the director to set an agenda for the year. That would involve targets. I would be inclined to consider a reduction in targets, rather than an increase, in circumstances in which the director would examine what was required for the year. The objectives themselves would become targets.

On amendment No. 196, tabled by the Liberals, I agree entirely with the Minister. I thought that the Liberals misunderstood the matter, and I found the issue very complicated. Then again, I found the whole Bill a bit complicated, not being a lawyer. That is the first time that that has been said in the debate, but it will be said many more times over the next two days.

I ask the Minister to look at the targets. I know that the situation is fluid and that it will change, but we should consider it in a better light, perhaps strengthen the director's objectives and make them part of the targets.

Norman Baker (Liberal Democrat, Lewes)

First, may I briefly put it on record that we received no request from the SNP for a place on the Committee?

Annabelle Ewing (Scottish National Party, Perth)

Will the hon. Gentleman give way?

Norman Baker (Liberal Democrat, Lewes)

I have not even started.

Alan Haselhurst (Deputy Speaker, Saffron Walden)

Order. I appeal to the hon. Member for Lewes (Norman Baker). We do not want to go back down that track. Let us stick to the amendment, as there is an awful lot to cover today.

Norman Baker (Liberal Democrat, Lewes)

I am sure that we would have given them a seat if they had wanted one.

I thank the Minister for listening to what was said in Committee and for the Government amendments, all of which we welcome, especially amendment No. 79. As he knows, it addresses a point of concern raised not just by Opposition Members, but by the hon. Member for Redcar (Vera Baird).

I want briefly to address our amendment No. 196. We shall not press it to a Division, but we want to tease out from the Minister, even at this stage, more information on how the co-operation will occur. Our motivation is the uncertainty that persists following the discussion in Committee, and I refer the Minister to columns 49 and 50 and the rest of that debate.

We want to ensure, first, that nothing a director does could jeopardise criminal proceedings by cutting across prosecution authorities and, secondly, that the director does not receive material that is passed to him unlawfully. Nor do we want him to be artificially hampered in respect of information that would help his work that has been collected and could be used by him. The amendment represents an attempt to clarify the legal position.

In Committee, I raised with the Minister the position regarding telephone taps and whether information from such sources could be passed to the director. In return, he referred me to the specific exemptions in part 10—the Data Protection Act 1998 and part 1 of the Regulation of Investigatory Powers Act 2000. We are clear on those, but, of course, other legislation is involved. For example, a collection of material relates to telephone communications—not taps, but records of numbers that have been dialled, which are not covered by the two Acts.

It is possible for information to be collected by a prosecution authority or, indeed, by the security services, which are not among the bodies set out in part 10. Therefore, there is doubt in my mind about whether they are included and what their role is. It is also possible for information to be collected by the security services that is intended for a prosecution. The judgment may be made that a prosecution would not be sustainable. In such circumstances, would it be permissible to pass information that had been collected to the director? If not, would the information be lost in respect of any subsequent action that may be taken by the Assets Recovery Agency?

We are uncertain about those issues. I repeat that I do not want information that should be used for confiscation procedures to be collected but not passed on, but nor do I want anyone to be in a position where they are deemed to be passing information unlawfully. I think that our amendment helps to clarify the legal position, but the Minister clearly takes a different view. He must provide more clarification and, in particular, refer to the position of the security services, which are not mentioned in clause 427(5), as other prosecution and law enforcement agencies are.

Ian Lucas (Labour, Wrexham)

I shall confine my remarks to amendment No. 174 and the question of the performance targets, which has already been raised. The hon. Member for Surrey Heath (Mr. Hawkins) may be labouring under a misapprehension. My reading of the Bill suggests that the performance targets will be set not by the Government, but by the director in the confines of the plan. Will the Minister confirm that? The Government are not imposing targets on the director, as the hon. Gentleman suggests; rather, the director, in managing his organisation, will decide to present performance targets in the confines of his own plan.

Paul Stinchcombe (Labour, Wellingborough)

Does it not strike my hon. Friend that the purpose of the Opposition's amendment is effectively to allow the Government to impose limitations on the director's discretion to set whatever targets he thinks appropriate?

Ian Lucas (Labour, Wrexham)

I am grateful to my hon. Friend. As so often over the past few months, he has pinched my point and made it better than I could ever have done.

Nick Hawkins (Conservative, Surrey Heath)

Is the hon. Gentleman seriously suggesting that any director running a sensible organisation in the private sector would have more than 10 performance targets?

Ian Lucas (Labour, Wrexham)

As one who ran a business in the private sector before coming here, I would certainly have more than 10—and my business was much smaller than the agency will be.

I think the Minister's point that Government should not fetter the director's management goals is the salient point, the one that carries real force. If the Minister can confirm that the director rather than the Government will impose the performance targets, the Opposition's argument must surely fall.

Paul Stinchcombe (Labour, Wellingborough)

If the hon. Member for Surrey Heath (Mr. Hawkins) is right in saying that no sensible director would impose more than 10 targets, he has nothing to fear from the employment of—presumably—such a sensible person. We merely suggest that, rather than our dictating to him how he should exercise his powers and discretions, he should decide for himself.

Bob Ainsworth (Labour, Coventry North East)

I do not know what more I can say about disclosure, other than repeating the commitment I gave in Committee that part 10 will do nothing to authorise a disclosure prohibited by the Regulation of Investigatory Powers Act 2000, or cut across the provisions of the Data Protection Act 1998.

The hon. Member for Lewes (Norman Baker) asked whether the director would receive information that had been obtained illegally. In effect, the director is not an individual but a public body; certainly, he is a public person. All the usual restrictions involving operating within human rights legislation and other requirements will apply to him as they do to any other person.

The hon. Gentleman and I may differ on whether, and to what extent, the human rights legislation should be replicated in different parts of the Bill, but we think the restrictions in the Acts I have mentioned, along with the requirements of the Human Rights Act 1998, are sufficient to ensure that the director cannot act in any way that is inappropriate.

As for the possibility of the director's actions cutting across prosecutory authorities, I can only ask the hon. Gentleman to return to our debate about the hierarchy that we envisage. We do not want any of the powers in the Bill to impede the primary objective, which must be the prosecution and bringing to book of criminals by the ordinary prosecution authorities, and their ability to take such people to court if possible and, when appropriate, to lock them away. Nothing that the director does within any of the powers that we are giving him under the Bill ought to cut across the activities of the other law enforcement agencies, which should come as a first consideration in the hierarchy.

Norman Baker (Liberal Democrat, Lewes)

Law enforcement agencies might collect information at an early stage with a view to prosecution that would then not be used. Can the Minister guarantee that information that is collected and which may be useful in subsequent proceedings undertaken by the Asset Recovery Agency will be passed on? Are there circumstances in which it will not be passed on?

Bob Ainsworth (Labour, Coventry North East)

The hierarchy will work in such a way that the overwhelming majority of the information that comes to the director comes from the police authorities or the prosecution authorities. In most circumstances, that will occur where they have decided that prosecution is not viable or appropriate, for whatever reason. Of course the information, where appropriate, will be passed on to the director of the Asset Recovery Agency so that he can consider whether or not to pursue the issue through civil recovery, his taxation powers or whatever else is appropriate to him.

I can only repeat that the director will act as a public body. He is restrained by all the requirements that fall upon him under human rights and data protection legislation and the RIPA provisions. We feel that they are sufficient to make sure that information is passed on to the director appropriately.

We do not want to put any restrictions on people co-operating with the director; quite the reverse. We want people to co-operate with him and we want powers to recover the proceeds of crime used far more extensively in this country than they have been over many years. That has been the desire of Governments of all complexions for a long time, but our legislation has been woefully inadequate until this point. We can only hope that our provisions will rectify that and that we can attack those profits and dismantle some of those organisations by preventing them from doing what they exist in order to do, which is to generate money and proceeds.

Norman Baker (Liberal Democrat, Lewes)

Can the Minister explain why, in part 10, MI5 in particular and the security services in general are not listed as permitted persons?

Bob Ainsworth (Labour, Coventry North East)

The hon. Gentleman is right; the security services are not listed as bodies that are permitted to disclose information to the director. Discussions are continuing as to whether it would be appropriate to list them. We had a discussion in Committee about this. When I am able to say something about it, I will try to make sure that Parliament is made aware of our conclusions. For the moment, the security services are not listed. We are continuing to examine whether they ought to be, and in what circumstances.

On the question of targets, my hon. Friends the Members for Wrexham (Mr. Lucas) and for Wellingborough (Mr. Stinchcombe) are absolutely right. There is widespread discussion about how many targets we impose on how many bodies and whether or not it is appropriate for us to do so. We had such a discussion in Committee. I ask Opposition Members to accept that while everyone complains about the number of targets that we require of them, let them try to remove one. The complaints come quickly that by removing the target, we are saying, in effect, that the activity concerned is not core or central and that we are not giving it sufficient prominence. Here, we are not talking about imposing targets on the director, as my hon. Friends have said. The director will draw up the targets. He will have to have the agreement of the Secretary of State.

Nick Hawkins (Conservative, Surrey Heath)

Not too many.

Bob Ainsworth (Labour, Coventry North East)

The hon. Gentleman says that we should not impose too many targets. Obviously, the director will want to manage the business that he has been given and he will need to decide on the level of the targets. The hon. Gentleman may be right, and the director may decide that the number should be far fewer than 10, but why cannot we leave it up to him to decide appropriately?

Dominic Grieve (Conservative, Beaconsfield)

The Minister will recall that one of the anxieties expressed in Committee was about detailing targets for what could ultimately be the amount to be confiscated in any given year. The fear is that there could be a conflict between what is essentially an economic target for a Department and the interests of justice. I accept that no such target is set out, but it is a legitimate matter to raise and to express anxiety about.

Bob Ainsworth (Labour, Coventry North East)

The hon. Gentleman is absolutely right. It would be ridiculous to require the director to involve himself in X number of confiscation proceedings, with no consideration of quality or added value or what return comes from those proceedings. The Bill is structured so as to allow him to draw up the targets. He will have to do that and seek the agreement of the Secretary of State. We do not need a numerical restriction.

I thank my hon. Friends the Members for Wrexham and for Wellingborough for their input, and I ask hon. Members to support the Government amendments and not to insist on theirs.

Amendment agreed to.

Amendment made: No. 78, in page 260, line 24, at end insert—

'(2) But the Director must not appoint a person under sub-paragraph (1)(b) unless he first consults the Secretary of State.'.—[Mr. Bob Ainsworth.]

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I beg to move amendment No. 226, in page 261, line 24, at end insert "and in Scotland.".

Alan Haselhurst (Deputy Speaker, Saffron Walden)

With this it will be convenient to discuss the following amendments: No. 228, in page 262, line 20, at end insert—

'11A In section 15 of the Scotland Act 1998 (disqualification from membership of the Parliament) insert in subsection (1)—

"(aa) he is the Director of the Assets Recovery Agency";

11B In section 12 of the Government of Wales Act 1998 (disqualification from being an Assembly member), insert in subsection (1)—

"(e) he is the Director of the Assets Recovery Agency".'.

Government new clause 13—Performance of functions of Scottish Ministers by constables in Scotland.

Government amendment No. 90.

Government new clause 14—Performance of functions of Scottish Ministers by constables in Scotland (No. 2).

Government amendment No. 285.

Amendment No. 229, in clause 447, page 258, line 29, leave out "or 431(6)" and insert ", 431(6) or 446".

Government new clause 6—Enactment.

New clause 1—Operation of the Act in Scotland: reports and review—

'(1) The Lord Advocate must, as soon as possible after the end of each financial year, publish a report on how he has exercised his functions under Part 3 and under Chapter 3 of Part 5 during the financial year.

(2) The Scottish Ministers must, as soon as possible after the end of each financial year, publish a report on how they have exercised their functions under Part 5 during the financial year.

(3) Within a period of two years after the coming into force of Part 5 of this Act, the Lord Advocate and the Scottish Ministers must publish jointly a review of the operation of the Act (other than Part 6) in Scotland, including their opinions on the case for the establishment of a Scottish Assets Recovery Agency.

(4) A report under subsection (1) or (2) or a review under subsection (3) must be laid before the Scottish Parliament.'.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I associate myself with the remarks made earlier about the conduct of the legislation and our proceedings in Committee. This is the single largest piece of legislation from Scotland to go through the House since the Scotland Act 1998. In that context, I am pleased to welcome back to the debate Scottish National party Members. I am not given to defending my Whips Office, but I remind the House that Plaid Members, who are in the same position as Scottish National party Members, somehow managed, through my Whips Office, to get representation on Standing Committees. I fear that there is something slightly false in the self-righteous indignation that we hear from the SNP.

Alex Salmond (Scottish National Party, Banff and Buchan)

Such is the lack of confidence in the Liberal Whips Office and its representation of minority parties that not only the SNP but Plaid Cymru, all the Unionist parties, the SDLP and every other minority party have defected from the Liberals as representatives and are now being represented by the Government Whips, because the Liberal party consistently filched our places on Standing Committees.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

Had the hon. Members for Angus (Mr. Weir) or for Perth (Annabelle Ewing) asked our Whips Office, they would have been more than welcome.

Alan Haselhurst (Deputy Speaker, Saffron Walden)

Order. I have heard enough of this argument, which is quite outside the terms of the amendment. Let us get on with the substance of the amendment.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I take your point, Mr. Deputy Speaker.

The amendment is not of massive significance, but I urge the Minister to consider it seriously. The functions of the director of the Assets Recovery Agency that are to be executed north of the border—primarily taxation functions—should be incorporated in a plan. Plans are being outlined for the rest of the country, and I do not see why there should be any difference for Scotland.

Likewise, in connection with amendment No. 228, it must be remembered that the Bill comes before this House as a result of a Sewel motion. Much has been made during the Bill's passage through the House of the virtue of uniformity of provision throughout the United Kingdom. As drafted, the Bill provides that the director of the ARA would be excluded from membership of both this House and the Northern Ireland Assembly. Given that the director has some functions in Scotland and Wales, it seems only sensible that the exclusion should apply there also.

More significant is new clause 1. The Bill will require the director of the ARA to make reports to this House. New clause 1(1) would mean that the Scottish Parliament would benefit from the same level of reporting, from the Lord Advocate. The general point is that the Lord Advocate and the ARA director will have nearly identical roles. Therefore, the Scottish Parliament should be able to subject the actions of the Lord Advocate in the performance of his functions under the Bill to the same degree of scrutiny as this House will be able to bring to bear on the performance of the ARA director. Proposed new subsection (2) deals with the execution by other Scottish Ministers of their functions under the Bill.

Proposed new subsections (3) and (4) are based on the assumption that at some time in the future there will be a Scottish ARA. In Committee, I expressed concern that the Lord Advocate's significant range of functions under the Bill could give rise to a conflict of interests with those functions that he currently executes, either by statute or by common law, in relation to the investigation and prosecution of crime in Scotland. There is a fairly strong argument for saying that, in light of the nature of the powers to be given to the Lord Advocate or executed by the state under the Bill, a new body should be created. That body would physically distinguish the new powers from the Lord Advocate's prosecution functions, which are all based in the Crown Office.

On balance, I am persuaded that the relatively small nature of the operation north of the border means that the creation of a special ARA for Scotland would lead merely to an unnecessary—and possibly unwieldy and less effective—layer of bureaucracy. However, the option should be kept open. Once we see how the functions—especially with regard to confiscation—are carried out when the Bill is enacted, we should be able to consider whether it is necessary to establish an equivalent agency to operate independently in Scotland.

There is a danger of cross-contamination between some of the confiscation and subsequent civil recovery proceedings, and the investigation and prosecution of crime. It seems to me appropriate that the position should be properly assessed after a couple of years, and that the Scottish Parliament should be able to revisit the matter in the light of experience.

The only other matter on which I wish to comment at this stage is amendment No. 229. I am prepared, on balance, to support the Scottish National party on the amendment. It highlights an important issue in relation to the conduct of legislation through this House subsequent to the passing of a Sewel motion by the Scottish Parliament. I have gone on record before as saying that it is important to have proper scrutiny by Parliament of the Executive on legislation coming here under a Sewel motion. That is currently problematic.

The SNP's amendment would at least require an order to be brought before the Scottish Parliament and would allow Members of the Scottish Parliament to have the final say on whether they were happy with what we have done in this place. That is very little in the way of parliamentary scrutiny but it is preferable to none at all, which appears to be the situation at present.

I understand that the Scottish nationalists may divide the House on the amendment. They will have the support—albeit grudging—of Liberal Democrat Members.

Annabelle Ewing (Scottish National Party, Perth)

I rise to support amendment No. 226, tabled by the Liberal Democrats and the SNP-Plaid Cymru group. I should also like to speak to amendment No. 229 which, as the hon. Member for Orkney and Shetland (Mr. Carmichael) pointed out, has been tabled by that group.

The SNP-Plaid Cymru group is broadly supportive of this important Bill's objectives. It is about time that the drugs barons and their like accepted that they are not above the law. There are many good provisions in the Bill that will, I hope, secure the Bill's objectives.

Amendment No. 229 is of fundamental constitutional importance, because it seeks to ensure that the spirit of the Scotland Act 1998 is respected. The hon. Member for Orkney and Shetland pointed out that the Bill was referred by the Scots Parliament by way of a Sewel motion, passed on 24 October last year. That was necessary because the Bill covers not only reserved matters but also many matters devolved to the Scots Parliament.

At the time of the debate in the Scots Parliament in October, my SNP colleagues in Edinburgh supported the procedure proposed by the Scottish Executive on that occasion, although we have grave concerns about the ever-increasing recourse to Sewel motions put forward by the Labour-Liberal Scottish Executive in the Scots Parliament. There have been some 30 Sewel motions since May 1999. Let me put that in context by saying that there have been only 30 substantive Acts passed by the Scots Parliament in that time.

This matter was passed to Westminster in the sense that it was the original Bill that was approved by the Scots Parliament, including my SNP colleagues. However, there have been many major and substantial changes to the Bill, particularly to part 3, which deals with confiscation orders in Scotland.

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

The hon. Lady says that some 30 Sewel motions have been passed in the Scottish Parliament, compared with the 30 or so Acts that have also been passed. Is she saying that in these circumstances, the business in Sewel motions should have been held back? Is it the position of the SNP that the Bill should not have been dealt with by Westminster and that the measures to be taken against drugs barons should have been delayed until such time as the Scottish Parliament had the space to deal with them?

Annabelle Ewing (Scottish National Party, Perth)

I have already addressed that point; perhaps the hon. Gentleman was not listening. I said that on that occasion, my SNP colleagues supported the Sewel motion on the Bill. That is a matter of record, if the hon. Gentleman should ever read the minutes of the Scots Parliament.

Dominic Grieve (Conservative, Beaconsfield)

The hon. Lady might wish to acknowledge that when the complete rewriting of the Scottish parts of the Bill took place in Committee, the opposition to that taking place without further reference to the Scottish Parliament came principally from the Conservative Opposition.

Annabelle Ewing (Scottish National Party, Perth)

On the basis that the hon. Member for Galloway and Upper Nithsdale (Mr. Duncan) is not even here, notwithstanding that we are dealing with major changes to Scots law, nothing surprises me about the Conservatives.

The amended Bill involves major and substantive changes to Scots law, particularly in dealing with the mandatory rather than discretionary powers of the sheriff or the High Court judge to consider whether to proceed with a confiscation order hearing. That represents a major change to Scots law and it should be dealt with in the proper forum—the Scots Parliament. The Scots Parliament was presented with a Bill that did not contain this provision. This is a substantial amendment, and it must surely be in the interests of the democratic process that the Scots Parliament reviews whether it wishes to proceed with such a significant change to Scots law.

John Robertson (Labour, Glasgow Anniesland)

I have been looking at amendment No. 229. Can the hon. Lady explain why she wishes to incorporate clause 446 into the Bill, which is already drafted?

Annabelle Ewing (Scottish National Party, Perth)

We are seeking to ensure that key changes to the Bill concerning part 3 are referred back to the Scots Parliament for proper debate. If there is a Division and the amendment is passed, that is what the amendment will achieve. That is clearly what it states; perhaps the hon. Gentleman would like to reflect further on the text. It is the democratic way to proceed.

If the Government do not concede the point, I am pleased that we will have the support of Liberal Democrat Members in a Division. I wonder, however, what the position of Mr. Jim Wallace, the Liberal Democrat Minister for Justice in the Scots Parliament, would be.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

It is a particularly cheap shot, even from a Scottish nationalist, to attack someone who is no longer a Member of this House. Does the hon. Lady not understand and accept that Sewel motions do not last for ever? If there is any aspect of the Bill with which she or her colleagues in Edinburgh are not happy, it is open to them, when the Bill is enacted, to bring forward amending legislation in the Scottish Parliament. Surely that is what they should be doing—they should put up or shut up.

Annabelle Ewing (Scottish National Party, Perth)

That is putting the cart before the horse. Surely the best time to deal with legislation is when it is going through its parliamentary stages, which is what we are seeking to do. That is better than adopting legislation and then going through a further procedure.

Rosemary McKenna (Labour, Cumbernauld and Kilsyth)

Will the hon. Lady give way?

Annabelle Ewing (Scottish National Party, Perth)

With respect to the hon. Lady, I think that I have given way quite a lot. I do not want to tie up the time of the House unduly.

Many hon. Members have argued in favour of extensive recourse to Sewel motions. However, in January 1998, the late Donald Dewar indicated that the Sewel motion would be used only in very rare circumstances. We in the SNP are trying to respect the spirit of the Scotland Act.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

Will the hon. Lady give way?

Annabelle Ewing (Scottish National Party, Perth)

I have already given way to the hon. Gentleman.

We hope to get the support of the Minister on the amendment. I remind him that he stated in the Select Committee on Scottish Affairs on 7 November that although there may be no legal obligation to refer the matter back to the Scots Parliament, if there were substantial or major changes such as the mandatory rather than discretionary jurisdiction of the courts, there would be a political imperative to do so. I therefore ask the Minister to support the amendment, so that we do not need to divide. That is the democratic way to proceed.

I also support amendment No. 226, the argument for which was made eloquently by the hon. Member for Orkney and Shetland. To ensure consistency in the Bill, the director of the new agency, if he is to have a particular role in Northern Ireland, should also be required to explain in his annual plan how he intends to carry out his role in Scotland.

Nick Hawkins (Conservative, Surrey Heath)

On hearing the meowing of the pussycats among the Liberal Democrats, the Scottish nationalists and Scottish Government Members, one feels, as a member of the Opposition Front Bench, as if one is intruding on private grief. We had an interesting debate on these matters in Committee on 6 December 2001. The hon. Member for Orkney and Shetland (Mr. Carmichael), whose contributions were otherwise able and distinguished, had to concede that he was doing something other than what one of his spokesmen in the Scottish Parliament had asked him to do, and my hon. Friend the Member for Beaconsfield (Mr. Grieve) and I often felt that we were indeed intruding on the private grief of the other parties.

There are some serious points. As was noted in Committee, if the Government had envisaged the change from a discretionary to a mandatory regime at the time, one would have expected the Minister for Justice to inform the Scottish Parliament, so that the debate could proceed on that basis; the fact that such a statement was not made before the debate took place in the Scottish Parliament was very odd timing.

We acknowledge that, through this group of amendments, the Government have introduced some sensible changes. Government new clause 6, which will include Scottish Parliament Acts and Northern Ireland legislation, is a sensible clarification. Amendment No. 90, which amends clause 326, is also helpful. In deleting the phrase

"but excluding a lease which is not a long lease",

it addresses a point that was raised in Committee. Through this group of amendments, the Government have adopted the same constructive approach that they adopted in the previous group. We await with interest to hear what the Minister has to say about the issues that have so exercised Government Back Benchers from Scotland, Scottish nationalists—I am never quite sure whether they are calling themselves the Scottish nationalist and Plaid Cymru group instead—and Liberal Democrat spokesmen.

We understand the point made by the Scottish National party in its short but none the less significant amendment No. 229. Given the overloading of amendments that we must consider in but two days, it remains to be seen whether we will have time to divide on that amendment. Although we are debating it now, it would be called for a Division not today but tomorrow, because it relates to a later part of the Bill. Once again, therefore, we might prove unable to finish discussing an important matter in this House, and it might have to be returned to in another place.

These are important matters and they will surely receive considerable attention in the Scottish Parliament. We will listen with interest to what the Minister has to say about them, and perhaps we can return to them tomorrow, or in another place at another time.

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

I am somewhat puzzled by the position of the nationalists. They seem to be against Sewel motions in principle, but in favour of every individual example thereof—such as the Proceeds of Crime Bill—because they are impossible to oppose. That position gives rise to a certain difficulty, particularly when they try to argue for their proposed new procedure.

As I understand it—the Minister will doubtless correct me if I have misunderstood—under the Sewel procedure the opportunity for amendment always exists. Indeed, that is the purpose of debate in Committee and at this level. I cannot understand why, in such circumstances, the SNP did not ask the Liberal Democrats for a place on the Committee. You have said, Mr. Deputy Speaker, that it is out of order to pursue that issue and I do not particularly want to do so, but we need to consider the procedure that should be followed.

If a party such as the SNP agrees to the Sewel mechanism, it should not then argue that legislation passed by this House must return to the Scottish Parliament for further amendment. Under the Sewel mechanism, legislation should be amended in Committee, so the nationalists ought to have asked the Liberal Democrats—their bosses in respect of that procedure—for a place on the Committee. Three places were taken up by Liberal Democrats, but I presume that there was internal dissent, as they were never present at the same time.

Alan Haselhurst (Deputy Speaker, Saffron Walden)

Order. The hon. Gentleman has made his point. I listened very carefully and he was quite ingenious, but I do not want to go back to the general issue. Has he concluded his remarks?

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

No, there is plenty more. However, I take the point, Mr. Deputy Speaker, that I am not to mention again that the nationalists were not represented on the Committee, and I shall not discuss the fact that they declined to ask for a place.

We need to consider how such matters are dealt with and the question of the lack of scrutiny, which was raised by the Conservatives. On several occasions, the Conservatives have threatened us with the old codgers along the Corridor. They have suggested that if they do not get their way here, they will try to block the Bill in the other place. Although the Conservatives have engaged in a degree of constructive discussion, they have also indulged in an inordinate amount of piffle and waffle. It is clear that on some occasions they were deliberately delaying business to prevent further argument on the Floor of the House.

I realise that it is often difficult for a non-lawyer—many of my colleagues are also not lawyers—to distinguish between time-wasting and the normal language of lawyers. None the less, it was clear to those of us with open minds that the Conservatives were employing circular arguments—admittedly, they were ingenious on occasion—for no purpose other than delay. We must reject completely the strategy that anything that they cannot win here, they will try to win along the Corridor. [Interruption.] I am receiving signals from those on my Front Bench to keep going, but I shall draw my remarks to a close.

Alan Haselhurst (Deputy Speaker, Saffron Walden)

Order. Let me assure the hon. Gentleman that he must not keep going on that subject. May I suggest that he speaks to the amendment? We have a very considerable agenda to get through today, and he will do a service to hon. Members throughout the House if he confines himself to remarks relevant to the amendment.

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

In the light of that eloquent plea, Mr. Deputy Speaker, I shall not mention again the fact that the nationalists did not ask for a place on the Committee, and I draw my remarks to a close.

Alex Salmond (Scottish National Party, Banff and Buchan)

Repeating an allegation does not make it any more true. I can well understand, having listened to that contribution, why the Committee stage on the Bill took so long. The hon. Member for Glasgow, Pollok (Mr. Davidson) is a one-person Committee. If only he would be as assiduous in the Chamber as he is in Committee, he would have a better chance of reselection in Glasgow.

The hon. Member for Surrey Heath (Mr. Hawkins) attacked the SNP, the Liberals and the Government in turn, and he runs the risk of uniting us against him. Those parties share some common characteristics, one of them being that we do not necessarily pay much attention to Conservative Front Benchers. However, I hope to see the Conservatives in the right Division Lobby if the key amendment is called tomorrow.

The issue of the Sewel motion is a matter of principle. I know that the Minister will answer in that spirit, because when he appeared before the Scottish Affairs Committee on 7 November 2001 he specifically said that he could foresee considerable difficulties with legislation that was amended after a Sewel motion was passed. He said that it would be up to the Scottish Executive to go back to the Scottish Parliament. He continued:

"I think that there may be no legal obligation but I think that there may be a political imperative to do that, if there was a major change in relation to the principle. In relation to the question of mandatory/discretionary, that would be a major change."

The Minister saw a difficulty in a significant change being made after a Sewel motion, without a procedure to refer the matter back to the Scottish Parliament.

I can tell the hon. Member for Glasgow, Pollok and others that the issue is not about the Sewel process. The issue is what happens if legislation is changed significantly after debate in the Scottish Parliament.

Dominic Grieve (Conservative, Beaconsfield)

At the risk of repeating the question that I put to the hon. Member for Perth (Annabelle Ewing)—to which I received an incoherent and ungracious answer—has the hon. Gentleman read the report of the 15th sitting of the Committee on Thursday 6 December 2001, and if so will he acknowledge that those constitutional points were made by the Conservatives?

Alex Salmond (Scottish National Party, Banff and Buchan)

I am willing to reveal to the House that even the Conservative party can be caught telling the truth occasionally and the contributions from the hon. Gentleman and his colleagues in Committee were one such example.

In front of the Scottish Affairs Committee, the Minister acknowledged the real difficulty at issue in this debate. The merits of mandatory or discretionary powers for Scottish sheriffs are not at issue, because they will be addressed in a later amendment tabled by the Liberal Democrats. The debate tonight is about the principle of a significant change in legislation.

If the Minister will not be gracious enough to accept the amendment, at least he should tell us what he thinks is the answer to the question. I know that the Minister has enormous powers of persuasion and he may have convinced the Scottish Minister for Justice that the change is okay. However, it is a question not of the Scottish Executive being convinced, but of legislation passed by this House for the Scottish Parliament. Can the Minister tell us what he sees as the answer? Is it to place a rider in the legislation to the effect that if serious changes are made, the matter must go back to the Scottish Parliament to see if it meets with approval there?

Mark Field (Conservative, Cities of London and Westminster)

I shall not speak at great length, because I appreciate that we have much more to deal with. I wish to associate myself with the comments of my hon. Friend the Member for Surrey Heath (Mr. Hawkins), because I have enjoyed serving on what was a good-humoured Committee almost throughout its 39 sittings. The good humour broke down around the 36th sitting, but everything worked out well in the end. We had some useful debate during the three months and, as both my colleagues on the Front Bench have pointed out, some of it has germinated into Government amendments.

It is implicit in the fact that a Sewel motion has arisen that a Bill of this importance requires revision. The hon. Member for Glasgow, Pollok (Mr. Davidson) referred to that revision as being performed by the old codgers down the Corridor, but the fact that we have a second Chamber allows sensible and constructive revision to take place. I am sure that I speak for my fellow Conservatives in hoping that whatever revisions take place in the House of Lords they are constructive and do not destroy the intention of what is proposed. We all hope that the revisions are minor and that we can agree on them.

I have much sympathy with the hon. Members for Perth (Annabelle Ewing) and for Banff and Buchan (Mr. Salmond) and their points about Scottish democracy. On this Bill and others in the future, it will have to be decided how, after a Sewel motion has arisen, we can ensure that the right legislative changes have been made. That is one of the problems with the democratic system being thrown into the air after devolution, as we pointed out to the Government five years ago. The issue will remain to be determined in the years ahead.

I hope that the Scottish issue will not affect the main thrust of the Bill, which everyone on the Conservative Benches understands. We have several concerns that have been expressed in amendments that we will come to today or tomorrow. For example, I would be concerned if, in the provisions on money laundering, we were to have a separate English and Welsh track alongside a Scottish track. It might then be perceived that it was easier to launder money through one of the jurisdictions, and the Mr. Bigs—whom we all wish to catch—would be attracted to London or to Edinburgh to launder their funds. We need to take the issue seriously and that is why the Sewel motion has arisen. The Bill is complex and should be considered similarly throughout the UK.

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

In spite of occasional acrimony in the debate, I propose to be reasonably and perhaps untypically helpful. It was poetic irony that the spat between the SNP and the Liberal Democrats occurred when the hon. Member for Orkney and Shetland (Mr. Carmichael) was moving an amendment tabled by both parties. Amendment No. 226 would require that the director's annual plan set out how the director intends to exercise his functions in Scotland. However, the remit of the director will apply in Scotland only in relation to his taxation functions under part 6. As experts on the Scotland Act 1998 on both sides of the House will know, taxation is a reserved matter: it is not within the remit of Scottish Ministers or the Scottish Parliament.

The director's tax functions will be delegated from the Board of the Inland Revenue. That arrangement was made precisely because tax is a reserved matter, to preserve a unified tax system throughout the United Kingdom. We do not believe that it would be appropriate for the Scottish Ministers or the Scottish Parliament to become involved, however indirectly, in the exercise of tax functions. We will therefore resist amendment No. 226. However, I shall be a little more helpful shortly.

Under paragraph 10 of schedule 1, the director cannot be a serving Member of Parliament or Member of the Northern Ireland Assembly while he is the holder of the post. Amendment No. 228 would mean that the director would also be disqualified from membership of the Scottish Parliament and the Welsh Assembly. We agree with the principle behind these amendments. There is no obvious reason why the director could become a member of the Scottish Parliament or the Welsh Assembly, when he could not be a Member of Parliament here or a member of the Northern Ireland Assembly. We do not propose to accept the amendments as drafted, but we will consider how their purpose is best achieved. If appropriate, we will propose amendments to the Bill in the other place—so graphically described by my hon. Friend the Member for Glasgow, Pollok (Mr. Davidson).

As new clauses 13 and 14 and Government amendment No. 285 affected Scotland, the Government consulted and were advised closely by Scottish Executive and Crown Office officials. They, in turn, consulted their Ministers. I pay tribute to the officials who advised me and my colleagues on the Bill.

Under part 5, the Scottish Ministers are responsible for civil recovery in Scotland. I am pleased to advise the House that we envisage the creation of a small, multidisciplinary civil recovery unit to assist them in their functions. That unit will be staffed by people with relevant skills, including lawyers, accountants and civilian financial investigators. I am sure that that will please many hon. Members, particularly those of my hon. Friends who have asked for it. That initiative will strengthen the arm of the Scottish Executive in the fight against drug barons and money laundering. It will provide what I hope will be an effective new unit.

In criminal cases, the Lord Advocate and the procurator fiscal will continue to pursue the proceeds of crime of accused and convicted criminals, but with the greatly strengthened powers of the Bill. We envisage that advantage will be gained from seconding to the unit from time to time police constables with experience in investigating the proceeds of crime. On secondment, officers will not take with them their police powers. That would not be appropriate to the civil nature of the part 5 scheme.

Menzies Campbell (Liberal Democrat, North East Fife)

In which Department in Scotland will that unit be located? Will it be among the responsibilities of the Lord Advocate, and therefore located in the Crown Office, or will it be a responsibility of the Minister for Justice, and therefore part of his Department?

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

The internal arrangements are a matter for the Scottish Parliament and Executive. Given all that has been said, far be it from me to determine such matters. The unit will, however, work closely with the National Criminal Intelligence Service and the Scottish Drug Enforcement Agency, representatives of both of which I recently met in Paisley.

Scottish Ministers have a number of functions under parts 5 and 8 that it would not be appropriate for seconded constables to exercise. The purpose of the two new clauses is to set out those functions for parts 5 and 8 respectively.

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

I welcome the fact that a special unit is to be established. As the Minister rightly said, it comes about as a result of an initiative taken by me and my hon. Friends the Members for Glasgow, Cathcart (Mr. Harris) and for Glasgow, Anniesland (John Robertson) following discussions with Strathclyde police. Does the Minister agree that that, more than anything else that we have heard, demonstrates the advantage of participating in the Committee? Is not this the time to draw to the House's attention the fact that no SNP Member was ever present on that Committee?

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

That point may not have escaped the House, and it certainly would not escape Madam Deputy Speaker if I sought to make it again.

Amendment No. 90 relates to clause 326 and part 6. It is a drafting amendment to achieve consistency on the matter of the long lease, and I am glad to say that it has been welcomed by the hon. Member for Beaconsfield (Mr. Grieve).

Amendment No. 229 would require an affirmative resolution of the Scottish Parliament before Scottish Ministers could make a commencement order under part 3. The Scottish Parliament discussed that provision during a debate on the Sewel motion on 24 October. I attended that debate, which I do not believe is true of any of the four SNP Members who are here today. I must tell them that the SNP spokespeople who did attend that debate actually wanted the Bill to be strengthened. The move towards mandatory provision for Scotland takes account of the representations that those spokespeople made, and which were even more eloquently made by my hon. Friends in Committee. As my hon. Friend would doubtless wish to point out, they could have been made by others in Committee too.

When we decided to make that change I consulted the Deputy First Minister, who is Minister for Justice in Scotland, and the Lord Advocate. The change was then discussed within the Scottish Executive, and they agreed that we should proceed along the lines suggested. It was on the basis of that agreement that we did so.

May I say to the Tories, particularly the English Tories—we do not have the privilege of having the single Scottish Tory with us today—that they should not be fooled, as they were in Committee, by the apparently reasonable blandishments offered by the SNP? The SNP may talk about respecting and understanding the spirit of the Scotland Act 1998, but that is no part of its agenda. The SNP's agenda is to break up Britain, and every action that its members take is to that end. If the hon. Member for Beaconsfield does not understand that, he is more naive than he looks.

Dominic Grieve (Conservative, Beaconsfield)

As I said to the Minister in Committee, my party stands for the Union, but it also stands for the proper constitutional working of the devolution settlement. That is central to our principles. That is why I expressed concern in Committee, notwithstanding the Sewel motion, which we fully understood, about substantially rewriting legislation without its having gone before the Scottish Parliament. I should add that that issue and the issue raised by amendment No. 229 are not identical, which is why I shall listen carefully to what the Minister has to say.

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

I am not responsible for bringing matters to the Scottish Parliament. My responsibility was to consult the Minister for Justice and the Lord Advocate, and I did so. On this occasion, they judged that because they knew the views of all parties in the Scottish Parliament, there was no need to consult it. At the time of the Sewel motion, effective unanimity had been expressed that we needed strong powers to deal with the drug barons. I think that their judgment was correct.

Michael Weir (Scottish National Party, Angus)

The Minister will recall that I raised that point in the Scottish Affairs Committee, and he said:

"I think that there may be no legal obligation but I think that there may be a political imperative"

to take the matter back to the Parliament. The point was specifically canvassed in the Scottish Affairs Committee. I asked not about the Executive, but the Parliament. I made that point several times. When did the Minister change his mind?

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

I have not changed my mind, and the hon. Gentleman does not make his point any more effectively by shouting—[Interruption.] I shall hear no comments about pots and kettles. I said that there may, in certain circumstances, be a political imperative to consult the Scottish Parliament, but it is up to Scottish Ministers to decide when that is the case. In this case, they decided that it was not necessary, and I respect their decision.

Alex Salmond (Scottish National Party, Banff and Buchan)

Will the Minister give way?

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

I shall deal next with new clause 6.

Alex Salmond (Scottish National Party, Banff and Buchan)

Will the Minister give way?

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

No. I have dealt with that point and we have many important matters to cover.

Alex Salmond (Scottish National Party, Banff and Buchan)

Will the Minister give way?

Sylvia Heal (Deputy Speaker, Halesowen and Rowley Regis)

The Minister obviously will not give way.

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

It was fairly obvious, was it not, Madam Deputy Speaker? You are quite right.

New clause 6 would ensure that where the Bill interacts with other pieces of legislation, it is clear beyond doubt that United Kingdom legislation, including that passed by devolved legislatures, is included within the definition of the enactment. In case hon. Members are curious about why there is an exemption for clause 448(1), that is intended to ensure that additional public money is made available only where it has been specifically provided for by Westminster. I hope that everyone will agree with that.

Finally, and I hope helpfully to the Liberal Democrats, I will deal with new clause 1. Its effect would be to require the Lord Advocate and the Scottish Ministers to publish separate annual reports and other items outlined by the hon. Member for Orkney and Shetland, which I shall not list again. Hon. Members, particularly the hon. Gentleman, have contrasted the position in Scotland with that of the director of the Assets Recovery Agency. They have pointed out that the director is required by schedule 1 to publish both an annual plan and an annual report. I stress that the difference between the director and the Lord Advocate and Scottish Ministers is that the agency is a statutory body. It is therefore quite correct for the Bill to make detailed provisions on the director's duties and responsibilities. With regard to the Lord Advocate's responsibilities under the Bill for confiscation and cash seizure, I can assure the House that appropriate details of how he has exercised his functions will be set out in the Crown Office annual report, which is laid before the Scottish Parliament. Similarly, appropriate information on how Scottish Ministers have exercised their civil recovery and cash seizure functions will also be published and made available to the Scottish Parliament.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I welcome the news that that information will be published as part of the Crown Office annual report. However, does the Minister accept that that is produced only because the current Lord Advocate and some of his predecessors have chosen to do so, not because any such obligations are placed on him? If any future Lord Advocate decided not to produce such an annual report, Scotland would be left in a significantly weaker position than the rest of the country.

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

I do not accept that, because it is up to the Scottish Parliament to require the Lord Advocate and Ministers to produce reports as appropriate, and no doubt they will take that up. The hon. Gentleman has one or two friends in the Scottish Parliament, and he can raise it with them. I shall be helpful to the hon. Gentleman, and had he been a little less impatient he would have been even more excited about what I am about to say.

The Government attach considerable importance to the Bill and are determined to ensure that they work effectively to deprive criminals and others of the proceeds of their crime. That applies equally to Scotland. I can therefore assure hon. Members that, as with all new policy initiatives, the effectiveness of the new provisions will be kept under regular review by the Lord Advocate and by Scottish Ministers. If they consider that further changes or improvements are required, they will not hesitate to bring them forward. We consider that keeping responsibility for confiscation in Scotland with the Lord Advocate and making the Scottish Ministers responsible for civil recovery is the most effective arrangement for Scotland. However, if that should turn out not to be the case, of course consideration will be given to other options, including the setting up of a Scottish Assets Recovery Agency. I hope that the hon. Member for Orkney and Shetland will welcome that assurance.

The Government are determined to ensure that the Bill works effectively to deprive criminals and their associates of their ill-gotten gains. It will also recycle substantial amounts of the money recovered from the proceeds of crime to help the victims of crime. That is an important part of the Bill.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I am happy to welcome the Minister's assurances, but does he not accept that the difference between my proposal and his is that the Scottish Parliament, not the Scottish Executive, should be the ultimate arbiter of whether the system is working well?

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

Of course, the Scottish Executive is accountable to the Scottish Parliament. The hon. Gentleman has colleagues not only in the Scottish Parliament, but in the Scottish Executive. Indeed, he has a very close colleague there, and he should talk to him a bit more.

Given what I have said, I do not think it appropriate to tie Ministers' hands in the way that the amendment seeks to do. In particular, within two years may be too short a period in which to reach a proper assessment of the overall effectiveness of the Bill's arrangements. We do not know how many civil recovery cases there will be in Scotland, but Ministers will have the option of a Scottish agency if they think it appropriate.

In the light of the assurances that information on the exercise of Ministers' functions under the Bill will be published, and that the effectiveness of the Bill in Scotland will be kept under regular review, and given my reasonable and, I hope, eloquent reaction to the amendments, I invite hon. Members to withdraw the amendment and not to press the others.

Michael Weir (Scottish National Party, Angus)

I want to return to the point that I tried to pursue earlier by reminding the Minister that when he appeared with the Secretary of State for Scotland and the Advocate-General before the Scottish Affairs Committee on 7 November, the point about the position of the Scottish Executive and the Scottish Parliament was clearly canvassed. The Minister was specifically asked whether the Bill would go back to the Scottish Parliament if there was major change. He said:

"I think that there may be no legal obligation but I think that there may be a political imperative to do that,"—

that is, to take it back to the Scottish Parliament—

"if there was a major change in relation to the principle. In relation to the question of mandatory/discretionary, that would be a major change".

That major change has come to pass, so does he not agree that it should go back to the Scottish Parliament? The Bill as agreed by the Scottish Parliament and with the passing of the Sewel motion will now be substantially different from the Bill that will be passed in this place. The Minister spoke of it and was taken up on the point. The Bill should therefore go back to the Scottish Parliament.

Amendment negatived.

Clause 4 — Co-operation

New Clause 2 — Disposal of family home: England and Wales

Dominic Grieve (Conservative, Beaconsfield)

I beg to move, That the clause be read a Second time.

Sylvia Heal (Deputy Speaker, Halesowen and Rowley Regis)

With this it will be convenient to discuss the following: New clause 3—Disposal of family home: Northern Ireland—

'(1) This section applies where a confiscation order has been made in relation to any person and the prosecutor or the Director (as the case may be) has not satisfied the court that the person's interest in his family home has been acquired as a benefit from his criminal conduct.

(2) Where this section applies, then, before the receiver disposes of any right or interest in the person's family home he shall—

(a) obtain the relevant consent; or

(b) where he is unable to do so, apply to the court for authority to carry out the disposal.

(3) On an application being made to it under subsection (2)(b), the court, after having regard to all the circumstances of the case including—

(a) the needs and financial resources of the spouse or former spouse of the person concerned;

(b) the needs and financial resources of any child of the family;

(c) the length of the period during which the family home has been used as a residence by any of the persons referred to in paragraph (a) or (b),

may refuse to grant the application or may postpone the granting of the application for such period (not exceeding 12 months) as it may consider reasonable in the circumstances or may grant the application subject to such conditions as it may prescribe.

(4) Subsection (3) shall apply to an action for the purpose of obtaining vacant possession of that home in order to dispose of it brought by the receiver as it applies to an application under subsection (2)(b) and, for the purposes of this subsection, any reference in subsection (3) to the granting of the application shall be construed as a reference to the granting of the relief sought in the action.

(5) In this section—

"family home", in relation to any person (in this subsection referred to as "the relevant person") means any property in which the relevant person has or had (whether alone or in common with any other person) a right or interest, being property which is occupied as a residence by the relevant person and his or her spouse or by the relevant person's spouse or former spouse (in any case with or without a child of the family) or by the relevant person with a child of the family;

"child of the family" includes any child or grandchild of either the relevant person or his or her spouse or former spouse, and any person who has been treated by either the relevant person or his or her spouse or former spouse as if he or she were a child of the relevant person, spouse or former spouse, whatever the age of such a child, grandchild or person may be; and

"relevant consent" means in relation to the disposal of any right or interest in a family home—

(a) in a case where the family home is occupied by the spouse or former spouse of the relevant person, the consent of the spouse or, as the case may be, of the former spouse, whether or not the family home is also occupied by the relevant person;

(b) where paragraph (a) does not apply, in a case where the family home is occupied by the relevant person with a child of the family, the consent of the relevant person.'.

Amendment No. 207, in clause 101, page 60, line 29, at end insert—

'(bb) the needs and financial resources of a person of the same sex as the person concerned, who is and has been for a period of not less than six months, living with the person concerned in a relationship which has the characteristics, other than that the persons are of the same sex, of the relationship between husband and wife;

(bc) the needs and financial resources of any member of the person concerned's family who is and has been, for a period of not less than six months, living with the person concerned in the family home.'.

Amendment No. 208, in page 60, line 31, leave out "or (b)" and insert "(b), (bb) or (bc)".

Amendment No. 209, in page 60, line 35, at end insert—

'(3A) Before granting an application under subsection (3) above, the court must take into account representations made to it by any of the persons referred to in paragraphs (a), (b), (bb) or (bc) of subsection (3);

(3B) In making representations under subsection (3A), any of the persons referred to in paragraphs (a), (b), (bb) and (bc) of subsection (3) shall be entitled to appear before the court.'.

Amendment No. 210, in page 61, line 5, at end insert—

'or by the relevant person with a person of the same sex as the relevant person in terms of subsection (3)(bb) or by the relevant person with a member of his family in terms of subsection (3)(bc).'.

Amendment No. 211, in page 61, line 20, at end insert—

'(c) where the family home is occupied by the relevant person and a person of the same sex as the relevant person in terms of subsection (3)(bb), the consent of the same sex partner;

(d) in a case where the family home is occupied by the relevant person and a member of his family in terms of subsection (3)(bc), the consent of the member of his family.'.

Dominic Grieve (Conservative, Beaconsfield)

When we considered the Bill's confiscation provisions in Committee, it was noted that the provisions for Scotland, which were otherwise being brought into uniformity with those for England, Wales and Northern Ireland through the Government's amendments, remained entirely different in one respect—that is, the safeguards for the disposal of the family home in the event of the various assumptions being made.

During the debate, as the Minister of State, Scotland Office, the hon. Member for Carrick, Cumnock and Doon Valley (Mr. Foulkes), may recall—I could refer him to the relevant passages in Hansard, but I do not want to take up an excessive amount of the House's time—he emphasised the issue of the different regimes that would exist in Scotland and elsewhere in the United Kingdom. He provided the Committee with interesting historical background on why the safeguards for the family home existed in the Scottish system.

The official Opposition did not try to amend the sections on England, Wales and Northern Ireland to include a similar provision, but the Minister undertook—on behalf of the Under-Secretary of State for the Home Department, the hon. Member for Coventry, North-East (Mr. Ainsworth)—to consider whether uniformity was desirable for the purposes of safeguarding the interests of spouses or former spouses or the needs and financial resources of any child of the family. However, nothing has happened. I am not criticising the Minister, but I shall be interested to hear why he feels that no further change is necessary.

When I considered the matter before this debate, I found myself inexorably drawn to what I must assume is the opposite conclusion from that of the Minister: that there are compelling reasons for introducing a similar safeguard under the England and Wales regime to that which existed for Scotland, and likewise for Northern Ireland. I shall explain why.

During consideration of the Bill in Committee, I accepted that the equitable jurisdiction that applies in English courts when dealing with property, especially property that may be occupied by a spouse or a child, may provide certain safeguards that would mean that if the spouse could show that in the course of the marriage she had acquired an equitable share in the property, it is possible that that part of the property might not be seized. I use the word "possible" advisedly, because it is not easy to reconcile the ordinary principles of an equitable jurisdiction with a criminal confiscatory mechanism, as stipulated in part 2.

During that debate in the 15th sitting of the Committee, the Minister accepted that the principal responsibility of the court, once the assumption had been made, was to realise the assets, and that must include confiscating the family home.

The matter becomes particularly obvious and glaring in the different regimes that will now exist north and south of the border, as is shown by subsection (1) of new clause 2. It is immediately clear that, under the regime in Scotland, the reversal of the burden of proof that arises when the assumptions are made will not apply if one of the objects of seizure is the family home. The burden will remain on the prosecutor to show that the family home specifically has been acquired as a benefit from the criminal conduct.

Of course, if that specific trigger arises, no protection will be afforded under the Scottish provisions to the wife, former spouse or the children who live in the house. However, if that trigger cannot be fulfilled, there is no reverse burden on the defendant at that point and the court may be able to consider all the circumstances set out in clause 101 in relation to Scotland. The court can postpone seizure or decide that in no circumstances would it be reasonable to allow the family home to be seized at any time. That seems to be a sensible and compelling safeguard, which could ultimately lead to the removal of serious risks of injustice and the perception of injustice. Clearly, that has been thought a very sensible measure in the Scottish jurisdiction, which is why it was introduced with other confiscatory mechanisms in the mid-1990s.

The more I consider the issue, the more convinced I become that no similar safeguard will exist under current rules in England and Wales or in Northern Ireland. I have become increasingly concerned that we shall end up with a system that diverges considerably north and south of the border—the very thing that the Minister said when arguing on the provisions for Scotland he wanted to get rid of; he wanted to produce uniformity. Also, we run the risk of it being said that the system in England and Wales is unjust. I have to tell the Minister, bluntly, that I cannot help thinking that the other possible outcome is that a far greater burden will be placed on the state through the social security system than might otherwise be the case.

The more I have thought about the issue, the more convinced I have become that there is every reason to include similar safeguards for the wife, former spouse or child in England and Wales and in Northern Ireland to those that exist in Scotland. I am prepared to be talked out of my position if the Minister can persuade me that similar safeguards that would have the same result exist south of the border. I do not wish to take up too much time because there is a lot of other business to discuss, but that is a very important point. I am sorry that we did not have more time to focus on this issue in Committee. This shows that, however carefully legislation is considered, there is always a further opportunity to find something else to do when we consider it again. Perhaps this matter can be dealt with in the other place if the new clauses and amendments that I have tabled are not sufficient.

Edward Garnier (Conservative, Harborough)

Would new clause 2 or the Bill allow the director to apply to the court for a charge on the matrimonial property that can hang there while the wife, spouse or any children need the house?

Dominic Grieve (Conservative, Beaconsfield)

The answer to my hon. and learned Friend's question is no, because the purpose of the provision is to produce a mandatory ratchet system, by which, when the assumptions have been arrived at, confiscation must follow. There is one possible caveat: confiscation may not take place if there is a serious risk of injustice. I am always a little anxious about what that term means. In any event, I am not 100 per cent. certain that it relates to the status of the spouse, former spouse or child. The Minister may choose to correct me if I am wrong, but that term seems to relate to the possibility that the asset may have been wrongly identified as resulting from criminal conduct and thus should not be seized.

The Minister may be able to provide some reassurance about that, but I have to tell my hon. and learned Friend that I do not find the issue at all clear because we are, in fact, dealing with legislation that relates to the confiscation of criminal assets. So such a safeguard may exist, and it may be possible to beef it up even further by going down the road proposed by the Human Rights Committee, which suggests that we should use the term "real risk of injustice" instead of the term "serious risk of injustice". All those things are interconnected in reality.

In short, I need to hear some compelling reasons why England and Wales should not have the same protection as that which the Government have been happy to provide north of the border. They should accept new clause 2, which I have adapted, I hope correctly, to make it sensible in English, rather than Scots, law. I wait to hear from the Minister on this important issue.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I have a broad degree of sympathy with the hon. Member for Beaconsfield (Mr. Grieve) on new clause 2. It would be ungenerous if we did not afford to the English the same protection as that given to the Scots, although that is often the case in any event. However, I do not know enough about English property law to comment on new clause 2 in any great depth, so I merely seek to bring to the House's attention amendments Nos. 207 to 211, tabled by my hon. Friends the Members for Lewes (Norman Baker) and for Mid-Dorset and North Poole (Mrs. Brooke) and myself.

Under amendment No. 207, which has the greatest substance—the other amendments are essentially consequential—we would afford to third parties who are in same-sex relationships the same protection as that given to spouses, former spouses and siblings who may have lived in the family home of the person against whom the confiscation order is made. There may be circumstances in which it is necessary to consider the needs and financial resources of the other members of the family who have resided with the accused in the family home. For example, siblings could have resided together in a house that is owned jointly, and it would be inappropriate to disregard the needs or interests of one party because the other is subject to confiscation proceedings under the Bill.

The point that I seek to make is one of general policy and principle. In 2002, there seems to be no good reason why the rights and interests in law of people in same-sex relationships should not be afforded the same protection in relation to their family homes as that given to spouses and former spouses. Of course, I readily concede that there are some difficulties with the definition of the relationships that might qualify.

I fully accept that six months is essentially an arbitrary choice, and other hon. Members may disagree about whether it is appropriate. It may be felt to be too short, but I remind the House that the court will still need to be satisfied that there is proof that the relationship exists and is worthy of the envisaged protection. The less time that the relationship has existed, the greater the difficulty in proving in court that it has existed. I draw a parallel with the Scots view on marriage by cohabitation with habit and repute, which has established a substantial case history in which it has been found that such relationships exist in law in some circumstances, but not in others. A general theme throughout the Bill, on which the Liberal Democrats have been happy to support the Government, is that fairly significant curtailments will take place of what would otherwise be regarded as civil liberties and human rights. If the Bill is to be effective and maintain public sympathy and support—which is crucial to the broader aims of the Bill in terms of the prosecution of crime and the promotion of law and order—it is particularly important that the interests of all third parties should be protected. We have identified a classification gap in relation to people who will not be protected.

John Robertson (Labour, Glasgow Anniesland)

Does the hon. Gentleman agree that amendment No. 207 might have fitted better if it were inserted into subsection (3)(a), which refers to spouses and former spouses? Perhaps the word "partner" might have been added. Although I support the hon. Gentleman's intention, that might have been a better approach.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

That would be an option. Without proper consideration, I would not like to say, on the hoof, whether the amendment would fit as neatly where the hon. Gentleman suggests as it does in its current place. However, I welcome his support for the broad principle of our proposal. I reiterate that what is important is that we are seen to give equal credence to the rights of those in same-sex relationships. By taking a more imaginative and bolder step, we might set precedents for the reform of other aspects of property law, particularly in relation to providing protection for people who are in abusive and violent relationships, which can be same-sex as well as mixed-sex relationships. If we are seen to take seriously the rights of every group that stands to be disadvantaged, the Bill will be much better regarded by the community.

Vera Baird (Labour, Redcar)

When a home is not part of the proceeds of crime and the family are innocent of all crime, there should simply be a power for a court to protect them from confiscation by refusing or postponing its sale, if that is just. I echo what the hon. Member for Beaconsfield (Mr. Grieve) said about the absence of any other kind of protection in English land law if the Bill provides no protection. I, too, have thought long and hard about whether the Government's statement that there was no need for such protection was accurate. However, I cannot find any way in which the rights of innocent families can be protected unless it is expressed in this statute.

I accept totally that it is right to seize the expensive mansion with swimming pool in the home counties that is owned by a man who has a dog called Brinks and another called Mat. I also accept entirely the right to confiscate cheap houses—the only type of house available in Redcar—as drug dealers live in them, and they should not be subsidised by their lifestyle. Nobody suggests that that power should not exist and should not be strong; it exists and it will remain.

However, a house is not just a piece of property; it is a home. There may be children between the ages of one and five living there, who do not have a clue that their father is a criminal. What is the difficulty in obliging authorities to obtain the court's sanction to sell in such a situation, therefore obliging the court to balance the interests of the family? If the interests of the family require the court to postpone the sale or outlaw it altogether, it does not diminish one iota the power of the statute to take the proceeds of crime away. It is a way of entrusting a decision to the judiciary. The judiciary will not allow the power to be abused—it makes decisions in other important areas of this Bill so why should it not do so in this one?

The Joint Committee on Human Rights, of which I am a member, considered the absence of protection for a family in the Bill and wrote to the Home Office raising queries. I do not do the reply an injustice by saying that it asserted that anyone who had a property interest in a home could be protected. That is right. As I have said, however, property rights are not the end of the matter. I am not speaking merely about the obvious justice of protecting families, because there is now a legal duty to protect family life.

Article 8 of the European convention on human rights provides a right to family life, which, in a democratic society, must not be interfered with unless it is necessary. Under the Bill, such interference would be for the prevention of crime. However, the difficulty is that the Bill does not provide an opportunity for the interests of the family to be weighed when the balance is struck as to whether it is justifiable to intrude—I hope that I am making myself clear. There must be an opportunity for those interests to be brought into play. Unless that point is specified, there will be no such opportunity.

The Home Office's reply to the Joint Committee on Human Rights, which is appended to the 11th report of the Committee, stated:

"Even where it cannot be shown that the family home was, itself, obtained from the proceeds of crime, the receiver may sell it because this is necessary in order to satisfy the confiscation order . . . The need to ensure that criminals do not retain the benefit of their offending outweighs the interests of innocent family members in staying in their home. The family members will not be prevented from living together elsewhere and, if left without funds, will be able to claim state benefits. Therefore, the family will not be prevented from having a family home."

It continued:

"If the spouse or child wishes to make a payment in order to extinguish the defendant's interest and remain in the family home, this is possible".

I hope and trust that that quotation is one to which no Minister would wish to lend support. On some occasions the public interest in seizing the assets might outweigh the family's interests, although, sometimes, it might not. The trouble is that the Bill provides no opportunity to do the balancing exercise.

Edward Garnier (Conservative, Harborough)

I ask the hon. Lady this question as I suspect that she knows a lot more about the criminal law than most other Members in the Chamber this evening. Does the Crown court have a power of its own motion to hear an affected party who is not the defendant but may be an innocent family member or an innocent affected person outside the confines of that family? Does it have that power anyway, or does the hon. Lady contend that the court will do that only if it is given the power in statute?

Vera Baird (Labour, Redcar)

Not being the author of Archbold—although I am grateful for the compliment paid to me by the hon. and learned Gentleman—it seems that there is probably no such power. There may be a power to allow somebody to be heard but it is unclear what power there would be to restrain the confiscation order as a consequence of what they said unless an express power were provided in the statute to protect that interest under article 8. From two points of view—that of the approach taken by the Joint Committee on Human Rights and that of straightforward justice—there is a real danger that there will be litigation on the matter very soon, and that a hard case of an innocent family evicted for a confiscation order will mean that the Government will lose.

John Taylor (Conservative, Solihull)

The hon. Lady referred to justice and equity, so may I draw to her attention the parallel that developed some years ago in English civil land law, which applied to the rights of the deserted spouse?. I think that it resulted from the case of Bendall v. McWhirter, but it certainly came from the noble mind of Lord Denning when he was Master of the Rolls. The protection of a deserted spouse has a certain resonance in this debate, so might we not draw some useful parallels?

Vera Baird (Labour, Redcar)

I take the hon. Gentleman's point. A self-sufficient legal right developed and in my respectful submission—said she using language that she should no longer be using—it is a good idea, if I can put it in a more folksy way, for the Government to consider whether it is necessary to put something similar in the Bill to protect family interests.

I emphasise that I am suggesting not that family interests will always prevail, but that they should be taken into account when they are drawn to a court's attention. There is a further danger that, given the situation in Scotland, article 14 of the European convention on human rights, which prevents the discriminatory implementation of the convention's rights, might also cause the Government litigation problems soon. I invite them to take a fresh look at the matter.

John Redwood (Conservative, Wokingham)

I am grateful to my hon. Friend the Member for Beaconsfield (Mr. Grieve) for moving these excellent new clauses, and the whole House benefited from the learned contribution of the hon. Member for Redcar (Vera Baird); I certainly learned from it.

The Government want to create a strong law, but it is important that it is not a vindictive law. They want it to be a tough law, but it is important that it is not a foolish law. It is very much easier to legislate soundbites but to regret them afterwards when one comes to work out the detail or the unintended consequences. I therefore urge Ministers to think carefully about what well trained and well qualified lawyers in this place have said about the lack of proper protection in English law and the lack of symmetry between Scottish and English law.

The rest of us, who have concentrated on the possible human tragedies, have pointed out that it would surely not be right to visit in all circumstances all the sins of one person on all the other family members. The issues require careful analysis by proper people in a proper place—in a court of law hearing evidence and making careful consideration of all the facts and circumstances.

We want to achieve not merely proper punishment of the wrongdoer or to send out the strong and clear message that people should not profit from their crimes, but to create a stable background against which the families of such people have a chance of being brought up in a different lifestyle and in a different way.

John Robertson (Labour, Glasgow Anniesland)

Who will look after the rights of the people who have suffered and died as a result of becoming drug addicts? Who will look after their rights if we allow people to benefit from crime and buy houses from its proceeds?

John Redwood (Conservative, Wokingham)

I entirely agree with the hon. Gentleman; he has misjudged his shot at me. I approach the matter in a consensual fashion, because we all agree that we do not want people to exploit others through the misery that is created by drug-pushing. We want to ensure that the villains are likely to have their ill-gotten gains confiscated—that is the purpose of the Bill.

We are now debating—an earlier intervention suggested that the hon. Gentleman sympathised with this view—whether it is right in every circumstance to take every asset and every valuable away from a family when their home may have originally been acquired quite legally and responsibly. Continued possession of the family home by the family members who are not in prison might be the best and most economical way from the state's point of view of giving that family a chance once they are separated from their loved one or former loved one who committed dreadful crimes and is rightly being punished for them.

If we consider the issue of state budgeting, we realise that it is not always sensible to take all the means of support from people, only to have to grant other means of support to them. If houses are confiscated, I trust that we will not leave families on the streets. Alternative provision must be made, and that might not only be worse for the family involved but it may turn out to be rather expensive for taxpayers who have to bear the burden of making the provision that had previously legally been made by the family. That could be the result if the law goes too far and does not give courts the opportunity to say, "In this case, the family would be better off if they were allowed to stay in the family home. All the assets from the trade have been confiscated and the person involved will be strongly punished in a variety of ways." For the sake of the family involved, it might be better for them to stay in the family home.

When I read the new clauses, which were drafted with considerable care and admirably moved by my hon. Friend the Member for Beaconsfield, I was struck by just how moderate they were. They do not tell a court always to allow the family to remain in the matrimonial home and do not spell out circumstances in which they should definitely keep the family home. The new clauses clearly state that, when the family home is acquired as a direct result of the drugs trade, it should be confiscated. As the hon. Member for Redcar memorably remarked, if a great big mansion in the home counties with a swimming pool was clearly acquired from the proceeds of an illicit trade, the law should be designed so that part of the punishment should be its confiscation. There is much sympathy for that view on both sides of the House.

The new clauses modestly and moderately point out, however, that a protection similar to that in Scottish law should be afforded in English law and that the House of Commons should trust the courts to make difficult judgments and possibly mitigate action in a limited number of cases. The courts should be given the opportunity to decide whether a punishment was too harsh on the family even though it would properly punish the offender.

The Government have also argued that the protection already exists in English law and that there is no need for the Bill specifically to legislate for such a provision. We have heard the legal advice in the House that has been given freely, which is most desirable and unusual. I am grateful to the members of the legal profession for giving so freely of their advice and pointing out that the protection might not necessarily already exist in English law. Therefore, it is beholden on Ministers to spell out precisely how the protection will be provided if they really believe that it exists elsewhere in the law. If, as I fear, they are unable to do that, why do they not allow the protection afforded by the new clauses to be inserted in the Bill?

Ministers do not seem to object to the principle of protection in Scotland, so how can it be fair to allow for the protection to exist in one part of the United Kingdom—a kingdom that many of us would like to be even more united than it is under this Government—and not in another? We would like similar protection to be accorded under English law.

I hope that the Government feel the need to respond to the points made in the debate. They are either arguing that there are no circumstances in which families should be allowed to stay in the family home and that that would always be wrong, or they are saying that there is already adequate protection in English law. If that is so, they need to demonstrate that clearly tonight. I am sure that if they could show that such protection existed, my hon. Friend the Member for Beaconsfield would reflect again on his new clauses.

I fully support my hon. Friend and the moderate new clauses that he moved so admirably. They deal with a potential injustice in the legislation. I conclude as I began: it does not help a law that is intended to be strong to make it vindictive. My hon. Friend is offering a modest but important improvement to the Bill, of which the House could be proud if it accepted it tonight.

David Wilshire (Conservative, Spelthorne)

I can be brief because virtually all the points that I wanted to make have been made, but I wish to add to something said by my right hon. Friend the Member for Wokingham (Mr. Redwood).

In Committee, Ministers went out of their way—at least, I think they did—to say that we need not worry because the protections exist already. They may be right or they may be wrong, but I do not think that matters. The Government have said that the protection offered in Scotland is right and that we have it in England already. All we are saying, however, is that the new clauses underline what the Government say already exists in England. If I understand that correctly, I cannot understand why they wish to resist the provision because the new clauses merely provide what already exists.

The only way to resolve the problem is for the Government to say that they agree with what we are trying to achieve. Where is the harm in saying that all over again to make certain that there is no doubt whatsoever? The Minister did not argue in Committee, and I hope that he will not argue tonight, that the protection should not be available in England. That is not the issue; everyone agrees that the protection should be available. The new clauses would ensure that it is, and I do not understand the Government's problem.

Edward Garnier (Conservative, Harborough)

I, too, will be brief because much of what I wanted to say has been said, not least by my hon. Friend the Member for Beaconsfield (Mr. Grieve), my right hon. Friend the Member for Wokingham (Mr. Redwood) and the hon. Member for Redcar (Vera Baird).

We are under a special duty to get the legislation right. I declare an interest to the extent that I might have to apply the law that we are passing when I sit as a recorder in the Crown court in England. During the past four or five years that I have sat as a recorder, it has occurred to me that most of the people who come before the Crown court are little people; they are not the Mr. Bigs. I dare say that the Government intend to catch the Mr. Bigs, but most of them are sensible enough not to come within our jurisdiction. It is the mules and the smaller fry in the criminal chain who get caught. We must concentrate on them and their families, because that is what happens in real life in the conveyor belt that comes before the Crown court.

The hon. Member for Redcar said that she represents people who live in fairly inexpensive houses. They are the very people who are likely to get caught because their husbands or wives will be accessible to the police and therefore to the criminal justice system. The families will be the unwitting victims of this well-intended Bill. Once they have lost their houses or whatever chattel may be confiscated, they will fall upon the state. It is unwise of the state to take with one hand for a good and sensible criminal deterrent purpose and to give to the family of that defendant with the other.

I understand that the procedures under part 2 are compulsory. I may be wrong, and no doubt others who have studied the Bill in more detail will be able to tell me whether it is mandatory on the director to make an application in all circumstances in which the facts fit. If there is a mandatory requirement to apply part 2, we must be all the more careful to ensure that the Human Rights Act 1998 is properly respected.

Dominic Grieve (Conservative, Beaconsfield)

The prosecutor does have a discretion to ask the court to proceed. Once he has done that, the wheels grind into motion. The noteworthy aspect is that at that stage there are few exceptions to getting out of the process, apart from the possibility of the court not coming to a final decision because of the serious risk of injustice. As I see it, that relates to the circumstances of the defendant, not the innocent people who may be affected by the eventual decision.

Edward Garnier (Conservative, Harborough)

My hon. Friend allows me to bring my remarks to a swift conclusion.

The simple point is that we are all interested in deterrence and in inhibiting those who benefit from crime. However, I should also like to think that we are interested in justice. If we can do anything during the deliberative process to bring justice to the Bill while achieving its sensible consequences, this is the time for the Government to pause and think.

Bob Ainsworth (Labour, Coventry North East)

I shall begin by setting out the background to the different situations in the jurisdictions as they relate to the matrimonial home before I turn to the substantial issues, such as devolution, time to pay, representations and the jurisdiction of England and Wales.

The difference between parts 2 and 4 and part 3 is one of policy. The same policy difference is found in legislation that covers the three jurisdictions. Courts in England and Northern Ireland enjoy a discretion in the decision to exercise their restraint and receivership powers, but that must always be used to satisfy a confiscation order. I was accused of governing by soundbite. It is an honour to be accused of that. I never thought that that was a strong part of my political armoury, so that accusation is interesting to say the least. The policy difference exists in legislation that was passed by a Conservative Government. There is no provision in legislation that covers England or Northern Ireland to permit the family home not being realised.

Part 3 reflects the long-standing provision in Scottish legislation that gives Scottish courts the power ultimately to refuse the realisation of the family home when satisfying a confiscation order. The provision replicates earlier confiscation legislation for Scotland contained in the Proceeds of Crime (Scotland) Act 1995. That developed a briefer provision that was set out along the same lines in the Criminal Justice (Scotland) Act 1987. So the difference in the two jurisdictions has been around for a long time.

The confiscation legislation in the three jurisdictions is different because Scottish law adopts a different approach to the occupancy rights of spouses in general. The Matrimonial Homes (Family Protection) (Scotland) Act 1981 gives the right to occupy the matrimonial home to spouses who are not owners or tenants and provides for the protection of occupancy rights. There is no equivalent legislation in England and Wales or Northern Ireland, so the general legal framework against which the confiscation legislation operates is different in the three jurisdictions.

There are arguments in favour of both positions. What is the justification for allowing someone to retain the proceeds of crime? People say that we are insensitive or, perhaps, ridiculous, and that although we are after the Mr. Bigs we will catch the little people. Let me give a couple of examples to justify the situation in England and Wales. I accept that things are different in Scotland, but that is its choice.

If we allow the Bill to contain loopholes, the serious criminal will ensure that the overwhelming majority of the proceeds of crime that are visible and retained by him are sunk in the matrimonial home to give him protection. We must make no mistake about that. That is what happens now and it will happen to an increasing extent. People with large homes in Surrey, with their swimming pools and the rest, will say that they are not subject to the legislation if it involves their matrimonial home.

I love it when Conservatives become concerned about the little person. Let us imagine two little people living side by side in a street of terraced houses in any one of our constituencies. Such people turn up at our surgeries all the time, do they not? One person has lost his job and is unable to pay the mortgage, but there is no discretion for the court to prevent the mortgage company from taking away his home. Such people are not criminals, and their husbands and wives are not criminals. Yet they wind up in our surgeries, having lost their matrimonial home because they are unable to pay their debts. That happens to all of us, all the time. Those cases are heart-rending, and local authority social services and the welfare state do their best to rescue the situation, using whatever power they have.

Next door to the family who have lost their home because they were unable to pay their mortgage live a couple, one of whom is a drug dealer. He has paid for his home, entirely and beyond doubt from the proceeds of crime. Are we saying that those people should not face the same situation as the honest family next door? It is not only big people that we are talking about; the Bill may affect small people too. We have never been prepared to give to ordinary people who fall on hard times and lose their matrimonial home the protection that some Members claim should apply to people whose home has been paid for with the proceeds of crime and of the misery inflicted on the community in which they live.

Bob Ainsworth (Labour, Coventry North East)

I give way to the hon. and learned Member for Harborough (Mr. Garnier).

Edward Garnier (Conservative, Harborough)

The examples given by the Minister have an attraction, but only a spurious attraction. As often as not, in the civil cases in which people cannot pay their mortgage, both partners will be aware of what is going on and will be able to make their own arrangements with the building society or mortgage lender. I accept that some circumstances will be different, but that will be the case, by and large. Whether or not their actions are effective, they will at least be able to take part in a process. In the second example, the spouse or partner may be wholly ignorant of any criminal activities. The Minister may not like my response to his argument, but that is my response.

Bob Ainsworth (Labour, Coventry North East)

That is nonsense, and the hon. and learned Gentleman ought to know it. I have been a Member of Parliament for 10 years and I do not know how many times I have seen at my surgery women who claim that their husband ran up debt on a credit card, in a credit agreement or in payment for a car without them knowing anything about it. They are not responsible for that debt, but they end up being jointly and severally liable and losing their matrimonial home as a result. That happens all the time, and the hon. and learned Gentleman must know that. Although there is no joint responsibility for credit card bills, there is a joint responsibility to pay the mortgage, and if people cannot do so they lose their home. If the hon. and learned Gentleman can tell me that that does not happen, I will be more than happy to listen to him.

Vera Baird (Labour, Redcar)

rose—

Bob Ainsworth (Labour, Coventry North East)

I shall give way to my hon. Friend in a moment because I want to deal with some of the points that she made.

What about a person who loses their job? How is that the fault of the spouse? Yet the spouse becomes liable for the financial situation that results. The hon. and learned Member for Harborough must know that the circumstances that apply to the innocent spouse in that case are the same as those that apply to the innocent spouse of a criminal. Hon. Members are saying that we should provide protection in one case but not the other. I think that my honest constituents who find themselves in that situation would find it offensive if we gave protection to the spouses of drug peddlers that they themselves are not entitled to.

My hon. Friend the Member for Redcar (Vera Baird) expressed concerns about time for payment. I refer her to clause 12, which says that if a defendant shows that he needs time to pay, he can be provided with six months, which can be extended to 12 months. Clause 62 provides that any person who may be affected by action that the receiver proposed to take can apply to the Crown court, which can give them extra time to pay. The receiver has discretion, where there are enough assets, to choose which to go for. I suggest that in those circumstances the spouse would be in a situation no worse than that faced by many of our constituents.

Bob Ainsworth (Labour, Coventry North East)

I give way to my hon. Friend the Member for Orkney and Shetland (Mr. Carmichael).

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I am not quite the Minister's hon. Friend. He makes a compelling case for reforming the law on debt and on the removal of family members as a result of heritable repossession. I look forward to considering the legislation that will no doubt flow from that. As ever, the Minister makes the case on the worst-case scenario—that of the drug dealer, whose trade must be perfectly obvious. I suggest that many cases will involve not a drug dealer but a person who, to all intents and purposes, appears to be a perfectly respectable member of the business community. An example was given earlier of someone who runs a tanning studio in Glasgow, a scrap business or a security company—something with a high cash turnover. In those cases, it may be difficult to establish the facts, but surely it should be open to innocent members of the family to seek protection, and that is what our amendments aim to achieve.

Bob Ainsworth (Labour, Coventry North East)

The hon. Gentleman knows that this provision applies to criminal confiscation and to individuals who have criminal convictions. He knows that the circumstances that we are discussing will probably arise in cases in which a criminal lifestyle assumption has been triggered, and he will know which offences, or pattern of offences, trigger the assumptions procedure. Otherwise, we would be talking about confiscating only the proceeds of a particular crime. We are not talking about cases in which there has been no pattern of criminal activity over a period or evidence of a lifestyle offence being committed. I mentioned drug dealing because it is a lifestyle offence, as the hon. Gentleman will know. We are talking about the homes of convicted criminals.

Vera Baird (Labour, Redcar)

My hon. Friend said some time ago that we are talking about cases in which the home has been acquired, lock, stock and barrel, through the proceeds of crime, but that is absolutely the opposite of the situation that we are talking about. Clause 101 protects only those matrimonial homes that have not been obtained from the proceeds of crime, so with great respect to my hon. Friend, what he said was not right.

I agree with the hon. Member for Orkney and Shetland (Mr. Carmichael) that my hon. Friend makes a good case for providing protection for families in cases where mortgages are to be called in. If, however, the relevant law is wrong, duplicating it in the Bill will not improve it.

Forgive me for making a long intervention, but may I just ask one more question, Madam Deputy Speaker? My hon. Friend referred to clause 62, which allows any person to make a further application to the Crown court. However, under the Bill the Crown court does not have any power to respond to the application by an injured spouse.

Bob Ainsworth (Labour, Coventry North East)

The power relates to the time to pay; I am sorry if that point was not clear. My hon. Friend made much of the fact that she did not think that it was possible to make representations, and was concerned that there would not be time to pay. There is both discretion and time to pay; it is possible to make representations. Hon. Members have said that I have made a good case for the reform of debt and that we should not be making matters worse. However, we would make things worse if we gave protection to family homes where the family had got into debt, because that would have wide ramifications. I do not know what would be the position of different parties and individuals in the house, but it would not be within the scope of the Bill.

As I have explained, we are not changing the law, which has operated for a long time in the jurisdictions of England and Wales. The power has been in existence throughout the time when confiscation legislation has been in place; if we are going to talk about the issue in relation to debt, this is the wrong starting point.

Vera Baird (Labour, Redcar)

My hon. Friend's point about the law having been in existence for some time is relatively minor, given the vast extension of the power to seize the proceeds of crime that the Bill will rightly introduce.

Bob Ainsworth (Labour, Coventry North East)

My hon. Friend knows about, and supports, the real need for legislation given the massive problem that we face. The Bill would not be necessary or deemed proportionate if the problem did not exist. I accept that, as a result of historic precedents, different circumstances apply under the three jurisdictions, but to say that because something applies in Scotland it must apply in England and Wales is a strange construction to put on devolution, and would give us real problems.

The other amendments in this group apply only to Scotland. Amendment No. 207 seeks to extend to same-sex partners the protections that are available to the spouse. Clause 101 provides a degree of protection for the accused's spouse or former spouse and replicates the Proceeds of Crime (Scotland) Act 1995, which in turn mirrors section 40 the Bankruptcy (Scotland) Act 1985. The law makes different provision in different contexts for spouses, cohabitees and dependants. In the 1985 and 1995 Acts, and now the Bill, the main question under Scottish jurisdiction is balancing the rights of creditors or the public against the needs of children and spouses. The protection does not extend to cohabitees, whether they are same-sex or not. Spouses have agreed to financial obligations to each other in a way in which cohabitees have not.

The Scottish Executive are to issue a draft family law Bill based on the Scottish Law Commission's 1992 report. The commission did not propose that protection against the owner of the family home selling it or giving up the tenancy should be extended to cohabitees, whether same-sex or otherwise.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

rose—

Bob Ainsworth (Labour, Coventry North East)

I know that the hon. Gentleman wishes to intervene, and I would like to give way to him, but we have a lot of important amendments to discuss. We have spent a lot of time on this group and I have already taken a lot of important interventions.

Any changes in this area of the law should not be made piecemeal; they need to be part of a coherent package. I hope that I have explained to Members what, I accept, is a difficult area of the law. However, anomalies would be created if we went down the tempting road of simply examining the issue superficially. I hope that Opposition Members will not to press their amendments to a vote for the reasons that I have given. If not, I hope that my hon. Friends will be prepared to vote them down.

Dominic Grieve (Conservative, Beaconsfield)

I am sorry to hear the Minister's response to what, I hoped, were serious and constructive proposals. I hope that I may be forgiven if I did not detect that in advancing his arguments the Minister was not partly persuaded of the merit of the case that I tried to make, and felt that there were intervening factors that required him to make a contrary case.

I shall pick up a couple of the Minister's points, which highlight the oddity of the Government's position. First, a telling and learned point was made by the hon. Member for Redcar (Vera Baird) about the fact that the proposal has nothing to do with situations where we are certain that assets that are the proceeds or benefits of crime have been used to purchase a house. In those circumstances, there would be no exception, but in circumstances in which the director has not satisfied the court that the person's interest in his family home has been acquired as a benefit of his criminal conduct, new clause 2 kicks in. The idea that, as a result of our proposal, an individual could leave his wife and children in a £5 million house somewhere in Surrey is far-fetched. As we examine clause 102, which applies to Scotland—I am asking that it apply to England, Wales and Northern Ireland—we can see that the court has enormous flexibility and the ability to

"grant the application subject to such conditions as it may prescribe."

I can envisage a situation in which, while there ought to be enough money to provide a house, it will not be in leafy Surrey. The new clause is fair, decent and proper, and the provision that it makes is distinct from the question of mortgages and debts. We have strong views because sometimes mortgages are foreclosed in painful circumstances, but at least they concern private property rights. If a person does not honour those rights, they will not receive any money. Courts have powers of postponement, which they sometimes exercise, but eventually the trap door opens, or closes, and people go.

We are putting together a policy designed to attack criminals, which the Opposition support. Indeed, there is universal support in the House for the principles of the Bill, but we are seeking to mitigate its harshness. In those circumstances, a different set of rules should apply; we should differentiate the rights of the state upholding the rule of law from those of the person to whom the state should sometimes show mercy.

Bob Ainsworth (Labour, Coventry North East)

It is not like the hon. Gentleman to present half an argument without presenting the other half. He is right about the circumstances applying to the home, but he must accept that we are talking about an assumptions procedure where there is deemed to be a criminal lifestyle. He cannot present one half of the argument without the other half, and it is not like him to do so.

Dominic Grieve (Conservative, Beaconsfield)

I understand the Minister's point, but it is important that the House should understand the issue under discussion. The assumption is made and the person is deemed to have a criminal lifestyle. As he knows, huge consequences will result. Effectively, the burden of proof is reversed and all assets except those which can be shown to have been acquired legitimately disappear and are confiscated. The point of the new clause is to provide an extra safeguard. In some circumstances, the criminal lifestyle may be established to exist, but the reversal of the burden of proof should not take place in relation to the matrimonial home or the home in which the spouse, ex-spouse and children are living. In such circumstances, the burden should stay with the prosecutor. If the prosecutor cannot discharge it, would not a right-thinking person say that there might be a situation in which the full force and rigour of the law should not be invoked?

Paul Stinchcombe (Labour, Wellingborough)

The hon. Gentleman is arguing that there may be some circumstances in which the full rigour of the assumptions procedure should not bite. However, is it not the case that it does not bite under the Bill if either the assumption can be shown to be incorrect or there is a serious risk of injustice?

Dominic Grieve (Conservative, Beaconsfield)

I return to the point that I made at the outset: my view is that the serious risk of injustice arises in relation to the assumption and not to the circumstances surrounding the spouse, ex-spouse or child. I have been very well briefed on the matter and I am sure that the Minister would have corrected me if I had got that wrong. He has not done so. Although I appreciate the hon. Gentleman's point, I do not think that it alters the force of the argument in any way.

The hon. Member for Redcar eloquently pointed out that the system will be divergent within the United Kingdom. I appreciate that diversity can exist, but let us consider what would happen if separate cases arose in relation to two adjoining properties in one jurisdiction, but the person in the first case was dealt with through the Scottish courts, while his brother next door—his co-drug smuggler—was put through the English courts. That could produce completely different results for the spouse or ex-spouse and children in each of those adjoining properties. When that happens, people will complain long and loud about that injustice, which may well be in breach of the Human Rights Act 1998.

We are proposing a small change that would not have the catastrophic consequences that the Minister fears. If it could have such consequences, not only would he never have allowed the Scottish provision to survive, but Scottish Members would have called long and loud for its removal in Committee. However, they did not do so, and I dare say that this provision is seen in Scotland as a fair one that has not been abused. I do not believe that the difficult consequences that he foresees would flow from the new clause. Without it, the House will have a reputation for unfairness in the context of England of Wales on the basis of a law that is inexorable and shows no respite for those whom it should protect.

I do not know what will happen in another place and I realise that we are unlikely to succeed in persuading enough hon. Members to vote with us for the new clause. Listening to the debate, I hoped that the Minister would make a small concession, so that I could ask leave to withdraw the motion, while these matters could be returned to in another place. However, the more I have heard, the more persuaded I am that we are right to insist on our proposals. We shall, therefore, seek to press the new clause to a Division.

John Greenway (Conservative, Ryedale)

On a point of order, Mr. Deputy Speaker. I am sorry to intervene on the deliberations on the Bill, but I understand that it is widely reported that there are two suspected cases of foot and mouth disease on the north York moors in my constituency. I am sure that the whole House would want to express its hope that the tests being carried out on samples from the two sheep prove negative. Our thoughts are with the farmer concerned and those in the surrounding area, who must be very apprehensive. In the event that the result of the tests is bad news, the House would like reassurance that there will be an emergency statement from the appropriate Minister, and I would be grateful, Mr. Deputy Speaker, if you could ensure through your good offices that would be done.

Michael Lord (Deputy Speaker, Central Suffolk and North Ipswich)

I have no knowledge of the matter to which the hon. Gentleman refers. Ministerial statements are entirely a matter for the Ministers responsible, but the House will have heard the point that the hon. Gentleman has made.

Alex Salmond (Scottish National Party, Banff and Buchan)

On a point of order, Mr. Deputy Speaker. Have you had notification from the Minister of State, Scotland Office that he is going to make a statement on an interview that he has given to BBC Scotland suggesting that the Electricity Act 1989 should take precedence over planning Acts in Scotland, to allow decisions on the development of nuclear power stations in Scotland to be made here rather than in the Scottish Parliament? If the Minister is going to make statements subordinating Scottish democracy to this Government's nuclear obsession, at least he should have the courtesy to do so from the Dispatch Box, rather than to BBC Scotland.

Michael Lord (Deputy Speaker, Central Suffolk and North Ipswich)

That is not a point of order for the Chair.

Clause 6 — Making of order

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 39, in page 3, line 20, at end insert—

'and the court considers that there is no real risk of injustice from it so proceeding'.

Michael Lord (Deputy Speaker, Central Suffolk and North Ipswich)

With this it will be convenient to discuss the following amendments: No. 41, in clause 8, page 4, line 20, at end insert—

'(1A) But the defendant shall not be held to have benefited to the extent that such benefit has already been forfeited by reason of any other power or enactment.'.

Government amendments Nos. 80, 190 to 192, 85 and 86.

Amendment No. 204, in clause 94, page 56, line 11, leave out "three" and insert "four".

Amendment No. 146, in page 56, line 12, at end insert—

'and the court considers that there is no real risk of injustice from it so proceeding'.

Amendment No. 205, in page 56, line 23, at end insert—

'(4A) The fourth condition is that, after considering the evidence contained in a statement of information prepared by the prosecutor under section 104, the court believes that it is appropriate for it to act under this section.'.

Government amendment No. 230.

Amendment No. 206, in page 56, line 41, at end insert—

'(8A) In making representations to the court under subsection (8), any person whom the court thinks is likely to be affected shall be entitled to appear before the court.'.

Amendment No. 150, in clause 96, page 57, line 16, at end insert—

'(1A) But the accused shall not be held to have benefited to the extent that such benefit has already been forfeited by reason of any other power or enactment.'.

Government amendment No. 290.

Amendment No. 212, in clause 104, page 63, line 11, leave out from first "the" to end of line 12 and insert—

'prosecutor asks the court to act under section 94, the prosecutor shall, within such period as the court may specify, give the court a statement of information'.

Government amendment No. 255.

Amendment No. 213, in page 63, line 31, leave out "If the prosecutor gives" and insert "After giving".

Amendment No. 214, in page 63, line 32, leave out "he" and insert "the prosecutor".

Government amendment No. 257.

Amendment No. 215, in clause 105, page 63, line 36, leave out from beginning to "on" in line 37 and insert—

'If the court is acting under section 94 and it is satisfied that the prosecutor has served a copy of the statement of information'.

Government amendments Nos. 258 to 260.

Amendment No. 216, in clause 109, page 67, line 37, at end insert—

'(bb) the prosecutor has evidence which was not available to him when the court decided the amount of the accused's benefit for the purposes of the order,'.

Government amendments Nos. 261, 231, 262 and 263.

Amendment No. 217, in clause 118, page 73, line 16, at end insert—

'(cb) a decision of the court not to act under section 94;".'.

Amendment No. 218, in page 73, line 17, at end insert—

'(3A) In subsection (2), after paragraph (v) insert—

(vi) under paragraph (cb), that the decision not to act under section 94 was inappropriate".'.

Amendment No. 219, in page 73, line 28, at end insert—

'(cb) a decision of the court not to act under section 94;".'.

Amendment No. 220, in page 73, line 29, at end insert—

'(7A) In subsection (4A) after paragraph (b)(v) insert—

"(vi) under paragraph (cb), that the decision not to act under section 94 was inappropriate.".'.

Government amendments Nos. 269 to 275, 233, 276 to 278, 234, 280, 283 and 284.

Amendment No. 147, in clause 162, page 96, line 38, at end insert—

'and the court considers that there is no real risk of injustice from it so proceeding'.

Amendment No. 151, in clause 164, page 97, line 37, at end insert—

'(1A) But the defendant shall not be held to have benefited to the extent that such benefit has already been forfeited by reason of any other power or enactment.'.

Government amendments Nos. 178, 193 to 195, 183, 184, 100 and 187 to 189.

Dominic Grieve (Conservative, Beaconsfield)

Were we to attempt to consider each amendment individually in the time available before the guillotine falls on our proceedings, I fear that we might get into difficulty. Therefore, I intend to confine my remarks to amendments Nos. 39 and 41, which are of considerable importance. However, they are very different and there is no immediate link between them, so they should be discussed separately.

I start with amendment No. 39. As we discussed at length in Committee, clause 6 is the first relating to confiscation orders, which we have debated in respect of new clause 2. On making an order, clause 6 baldly states:

"The Crown Court must proceed under this section if the following two conditions are satisfied."

The first is that a person has been

"convicted of an offence or offences in proceedings before the Crown Court"

and is

"committed to the Crown Court for sentence"

or

"committed to the Crown Court in respect of an offence or offences under section 70".

The second is that

"the prosecutor or the Director asks the court to proceed"

or the court

"believes it is appropriate for it to do so."

On Second Reading, my hon. Friend the Member for West Dorset (Mr. Letwin) made the point that the process of confiscation may be initiated although a person may have committed only three exceptionally minor offences for gain over the previous six years. That drew a few exclamations from those on the Government Benches, but it was not challenged. Indeed, it is quite clear.

The point was also made on Second Reading that the process may be initiated by a prosecutor when a person has committed offences amounting, perhaps, to no more than having no rear light on their vehicle. As the law will stand, those are offences for gain, because there is undoubtedly a pecuniary advantage in not having or replacing a rear light. As we discussed extensively in Committee, by such small matters a person may be moved into a procedure that the Minister has often acknowledged is draconian. Indeed, it is intended that it should be draconian towards those from whom assets are to be confiscated.

In Committee, we suggested that it might be better if "must" were replaced by "may" to allow some judicial discretion as to whether the process should be initiated. If a prosecutor says that he wants to embark on the process, a judge presented with a convicted criminal may simply reply at the outset, "What are this person's assets? Please tell me what you suspect. The offences appear to be of the utmost triviality." The judge could prevent the process from being initiated if he thinks that an injustice would result. Indeed, such a form of words existed for the Scottish provisions until they were reworded at the request, I am told, of Scottish Labour Back Benchers. The change that we discussed earlier therefore came about.

I acknowledge that the Government have a point about changing "must" to "may" in respect of the signal that might be sent out as to their resolution in dealing with criminals. Nevertheless, having thought about the matter following our debates in Committee, I still believe, as does the Law Society and a number of organisations, that a safeguard to prevent the procedure from being embarked on would be useful. That is why amendment No. 39 states that the other factor that may be taken into account when the court proceeds is whether

"the court considers that there is no real risk of injustice from it so proceeding".

Those words have been selected advisedly, because, as the Minister knows, the report of the Joint Committee on Human Rights spells out specifically that the expression

"a real risk of injustice"

is the acid test on which the court would determine the compatibility of the human rights provisions. Indeed, the Committee thinks the confiscation provisions compatible with the Human Rights Act 1998, but suggests a change in the wording, which, unfortunately, we shall not have time to discuss.

I ask hon. Members to consider whether the change would provide the residual safeguard to prevent time and money from being lost and injustice from occurring while in no way detracting from the force of the legislation. I commend the amendment to the House and say bluntly to the Minister that it would create not some loophole through which a criminal could escape the confiscation of his assets, but prevent time wasting in the judicial process. A judge considering what is being sought could say that injustice would result from the court and the prosecutor embarking on an onerous procedure that places great burdens on the accused.

Let me put one or two possibilities to the Minister. Ending up with defendants who fall ill, experience memory loss or suffer brain damage is not unheard of. Indeed, I have represented a person on serious criminal charges who was undoubtedly suffering from mental incapacity resulting from injury. In precisely such a case, the judge might say, "How on earth can this individual rebut the assumptions made against him when the burden is placed on him?" That is what the full thrust of the procedures is all about.

In such circumstances, the power of the legislation would be enhanced by allowing a judge to say at the outset, "This procedure is likely to be unfair and to lead to serious risk of injustice." That would show that Parliament has taken on board the possibility that injustice may result.

Paul Stinchcombe (Labour, Wellingborough)

Is it not right that the judge would have some discretion to prevent such proceedings from commencing? The second condition includes the words

"the court believes it is appropriate for it"

to carry on.

Dominic Grieve (Conservative, Beaconsfield)

No, the hon. Gentleman is mistaken. Were the matter left to the court, it would have that discretion, but if the prosecutor or the director made such a request of the court, it would not. I appreciate his point, but the second condition says

"or the court believes it is appropriate".

It does not use the word "and".

Paul Stinchcombe (Labour, Wellingborough)

I think I said that the judge has some discretion and that the provision includes the power for the court to rule that it is not appropriate to commence. The only point that the amendment attacks is the discretion of the prosecutor or the director also to ask the court to proceed. It contemplates the director asking the court to proceed even if he thinks a serious risk of injustice is present. Surely that is counter-intuitive.

Dominic Grieve (Conservative, Beaconsfield)

I hope that, in my time as a prosecutor, I tried to act fairly, but the duties of a prosecutor or a director and those of the judiciary are somewhat different. I think most people hope that they have a fair prosecutor, but I trust that they look to the impartiality and good sense of the judiciary to prevent injustice. I would normally look to the powers of judges in that regard.

Of course, such powers exist in a multiplicity of areas in judicial proceedings. In criminal proceedings, judges can stop cases. They can direct juries to return verdicts of not guilty. Those are substantial powers, which I have watched being invoked. It seems to me that, in such circumstances, giving the judiciary that power in no way detracts from the thrust of the legislation.

Amendment No. 41 deals with a completely different issue, which we did not tackle in Committee and to which I was oblivious at that stage. The amendment would make confiscation impossible if the benefit involved had already been forfeited. I am grateful to a professor of academic law at the University of Cardiff for bringing the matter to my attention, albeit too late for it to be considered in Committee.

A recent House of Lords decision—in the case of R v. Smith (David Cadman) 2001—had a surprising result. Let us suppose that cigarettes worth £200,000 are imported illegally into the United Kingdom and are seized at the port concerned. Let us suppose that those involved are forced to pay the duty, and that confiscation proceedings are then brought and a further £200,000 is demanded—as it would be under the Bill, as proceeds of crime.

With all due respect to their lordships, I find that a rather surprising concept. It is, in fact, a process of double recovery. I do not understand how the second amount can constitute the proceeds of crime when the proceeds of crime have already been confiscated, and I do not understand how, in that case, the amount can be recovered. It seems to me that a measure that, it should be remembered, related to the precise issue of smuggling rather than the wider issue of criminality could lead to unfairness.

The House and the Minister may, of course, wish such unfairness to continue. Let me point out to the Minister, however, that as a result of the Bill it may not just continue but be enormously widened. In many instances, people whose drugs worth £2 million are confiscated will be told "The proceeds of the crime are also worth £2 million. Pay up". Those amounts will relate to a single offence.

Edward Garnier (Conservative, Harborough)

I too have read the paper by Professor Peter Alldridge of Cardiff university, and I find the arguments very persuasive. During the Committee's consideration of clause 8, did the Government come up with their own definition of "the defendant's benefit"?

Dominic Grieve (Conservative, Beaconsfield)

There was undoubtedly discussion of what constituted the benefit, but it was based on the existing rules. There was no discussion of the impact of the court decision to which I have referred. It was not mentioned at any point. In fact, I must plead guilty to complete ignorance of not just its impact, but the consequence of widening the principle contained in it to the much wider issue of proceeds of crime generally.

I found the arguments of the Judicial Committee surprising, and I feel that Parliament should consider whether this is what it really intends. If we follow such a route, the matter may well not stop at the Judicial Committee; I suspect that it will end up in Strasbourg. Surely saying that, although the proceeds of a crime have already been confiscated under another provision, they will be confiscated again under the Proceeds of Crime Bill is nonsensical. I hope that the Minister will use the few minutes that remain to tell us whether that curiosity will be continued.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

Of necessity, I shall be brief.

A number of amendments have been tabled by Liberal Democrats, including me. Under amendment No. 216, before seeking reconsideration of the benefits, the prosecutor must have new evidence that was not available when the court decided the amount of the accused's benefit for the purposes of a confiscation order. Such a procedure should be used in appropriate circumstances, and the amendment would avoid ambiguity.

Amendment No. 205 would ensure that the statement of information became an integral part of the assessment of the case, rather than something produced after the court had decided whether or not to proceed.

We agree with the hon. Member for Beaconsfield (Mr. Grieve) on amendment No. 39. It, along with the latter part of our amendment No. 205, would reintroduce to the courts some degree of discretion in the determination of the appropriateness of proceeding.

The right hon. Member for Wokingham (Mr. Redwood) spoke of legislating by soundbite. I fear that our desperate drive to emasculate the courts and fetter their discretion will produce bad legislation. The proposals in amendments Nos. 39 and 205 are modest, and even at this late stage I ask the Minister to reconsider.

Edward Garnier (Conservative, Harborough)

I want to speak briefly on amendment No. 41, and to support my hon. Friend the Member for Beaconsfield (Mr. Grieve).

My hon. Friend referred to the case law in Smith. The question of law certified by the Court of Appeal as being of general public importance for the House of Lords to consider was whether an importer of uncustomed goods who intended not to enter them for customs purposes and not pay any duty on them derived a benefit under section 74 of the Criminal Justice Act 1988 through not paying the required duty at the point of importation, where the goods were forfeited by Customs following importation, before their value could be realised by the importer.

The House of Lords said yes. There was only one speech, delivered by Lord Rodger of Earlsferry, a Scots judge. It was noteworthy for its commitment to a harsh approach to the confiscation legislation. He held that the subsequent fate of the cigarettes was irrelevant to the confiscation order. If they had been lost, liability to pay duty would remain. That they were seized was likewise irrelevant.

Are the Government aware of that case, and are they passing legislation deliberately in the knowledge of that decision?

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

The list of amendments looks formidable, but many are technical. A number are drafting amendments, and a number bring Scotland into line with England and Wales. Amendments Nos. 39, 146 and 147, however, would require the court not to proceed with a confiscation hearing if it considered that there would be a real risk of injustice if it did so. I am afraid that the amendments run counter to the philosophy underlying the Bill, which is that recovering the proceeds of crime never involves any injustice.

The Bill specifically makes provision for the court not to make the statutory assumptions, but that is a different matter. Nobody is disputing that making the assumptions may occasionally present a serious risk of injustice and the Bill provides for that. That is not the same thing as a blanket provision that suggests that it may be unjust to proceed at all. If the purpose of the amendments is to suggest that recovering criminal proceeds is inherently unjust, I am afraid that I and my colleagues cannot share that viewpoint. I hope that the hon. Gentleman will withdraw the amendment.

Amendments Nos. 41, 150 and 151 would require the court to investigate whether any benefit of the defendant's had been recovered by means of any other power or enactment. We understand the spirit behind the amendments but, at the same time, we do not think that the approach is correct. The thinking underlying the amendments is clearly that the same benefit should not be confiscated twice. In fact, the Bill already makes provision to prevent this from happening at clauses 9(3), 97(3) and 165(3). However, I invite Opposition Members to send us details of the matters they have raised. We will consider them and see if any changes would be appropriate in the light of new evidence or circumstances. I hope that they will find that helpful.

Amendments Nos. 80, 269 and 178 are straightforward. They give the prosecutor in all three jurisdictions, and the director in the case of England and Wales, the right to be heard at all applications for time to pay or an extension of time to pay a confiscation order. That seems to us sensible, because there should be a counterbalance to the submissions of defendants who will often try to avoid payment by stalling for time.

Amendments Nos. 204 and 205 are unnecessary. The prosecutor's statement that sets out the Crown's calculation of an accused's proceeds of crime and of his assets will always be served upon a convicted person and lodged with the court. Accordingly, the court will always have before it a prosecutor's statement. Amendments Nos. 212 and 215 are consequential and, therefore, equally unnecessary.

The remaining Government amendments are either drafting amendments or bring Scotland into line with England and Wales. I will not cover them in any great detail.

Amendment No. 216 relates to proceedings held to consider increasing a confiscation order. It would prevent the prosecutor from deploying evidence at a hearing of this kind if it has been made available to the prosecutor when the confiscation order was made. It is rather odd that this proposal differs from the other reconsideration clauses in allowing the prosecutor to use evidence that he or she has not previously deployed. I agree that Opposition Members have a point with this amendment. I am glad to be helpful to Liberal Democrats—not often, but occasionally.

I am reluctant, however, to bring the clause into line with the others until I am clear why it is being treated differently. There may be good reason for the difference, but it is not immediately obvious. However, on the understanding that I am willing to give the point further consideration and that we will return to the House when matters have been clarified further, l invite hon. Members not to press the amendment.

I hope that I have answered the points in relation to amendments Nos. 39 and 41. I have resisted amendment No. 39, but I have been helpful on amendment No. 41. I hope that, on balance, the hon. Member for Beaconsfield will not press any of his amendments.

Dominic Grieve (Conservative, Beaconsfield)

With respect to amendment No. 41, I will seek to persuade the Minister that the safeguards do not exist in the Bill, because Professor Alldridge has persuaded me that they do not in the particular circumstances of prior forfeiture, as opposed to other confiscation.

There is an issue of principle with regard to amendment No. 39 and I will seek to put it to the vote. We are proposing a sensible judicial safeguard that will be of great benefit to the Bill and to the reputation of the law that this House passes.

Clause 12 — Time for payment

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

Clause 17 — Statement of information

Clause 25 — Inadequacy of available amount: discharge of order

Clause 30 — Variation of order

Clause 42 — Restraint orders

Clause 55 — Sums received by justices' chief executive

Clause 57 — Sums received by Director

Clause 78 — Gifts and their recipients

Clause 94 — Making of order

Clause 100 — Effect of order on court's other powers

Clause 104 — Statement of information

Clause 106 — Provision of information by accused

Clause 107 — No order made: reconsideration of case

Clause 108 — No order made: reconsideration of benefit

Clause 109 — Order made: reconsideration of benefit

Clause 112 — Inadequacy of available amount: discharge of order

Clause 113 — Information

Clause 114 — Conviction or other disposal of accused

Clause 115 — Accused neither convicted nor acquitted

Clause 116 — Variation of order

Clause 119 — Time for payment

Clause 123 — Restraint orders etc

Clause 124 — Application, recall and variation

Clause 129 — Seizure

Clause 132 — Power of entry and search

Clause 134 — Application of sums by enforcement administrator

Clause 135 — Sums received by clerk of court

Clause 138 — Protection of persons affected

Clause 139 — Recall and variation of order

Clause 148 — Tainted gifts and their recipients

Clause 155 — Proceedings

Clause 157 — Satisfaction of confiscation orders

Clause 168 — Time for payment

Clause 170 — Effect of order on court's other powers

Clause 173 — Statement of information

Clause 181 — Inadequacy of available amount: discharge of order

Clause 186 — Variation of order

Clause 197 — Restraint orders

Clause 210 — Sums received by chief clerk

Clause 212 — Sums received by Director

Clause 233 — Gifts and their recipients

New Clause 13 — Performance of functions of Scottish Ministers by constables in Scotland

Clause 249 — General purpose of this Part

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 57, in page 148, line 36, at end insert—

'(3) No powers conferred by this Part are exercisable in relation to any property which is, or represents, property obtained through unlawful conduct prior to the coming into force of this Part.'.

Michael Lord (Deputy Speaker, Central Suffolk and North Ipswich)

With this it will be convenient to discuss the following amendments: No. 201, in clause 250, page 149, line 10, leave out—

'decide on a balance of probabilities'

and insert—

'give the benefit of the doubt to the person whose property is the subject of these proceedings in deciding'.

No. 60, in page 149, line 10, leave out—

'on a balance of probabilities'

and insert—

'to the standard of proof applicable in civil proceedings'.

No. 59, in clause 252, page 149, line 30, leave out "thinks" and insert—

'has reasonable grounds to believe'.

No. 61, in page 149, line 31, at end insert—

'(1A) No proceedings may be taken by the enforcement authority in relation to property where there has been a previous positive finding in relation to a defendant in confiscation proceedings pursuant to section 6 or 162 and the property that was the subject matter of the proceedings under section 6 or 162 includes the property sought to be recovered under this Part.'.

No. 163, in clause 253, page 150, line 3, leave out "thinks" and insert—

'has reasonable grounds to believe'.

No. 164, in page 150, line 4, at end insert—

'(1A) No proceedings may be taken by the enforcement authority in relation to property where there has been a previous positive finding in relation to an accused in confiscation proceedings pursuant to section 94 and the property that was the subject matter of the proceedings under section 94 includes the property sought to be recovered under this Part.'.

Government amendments Nos. 133, 114, 286, 287, 235, 115 and 116.

Amendment No. 202, in clause 282, page 164, line 19, at end insert—

'or if the property was acquired more than 6 years before the date on which the proceedings were commenced'.

Government amendments Nos. 117 to 119.

Amendment No. 62, in clause 287, page 167, line 31, at end insert—

'(1A) If any other person has suffered a loss or damage as a result of an interim receiver or interim administrator dealing with his property in the reasonable but mistaken belief that he was entitled to do so in pursuance of an interim receiving order or interim administration order, such person may apply to the court for compensation'.

Government amendments Nos. 120 and 128 to 131.

Amendment No. 58, in clause 316, page 184, line 13, leave out subsection (3).

Dominic Grieve (Conservative, Beaconsfield)

This part of the Bill concerns civil recovery. As the House will be aware from our discussions on Second Reading, it is the intention that, in circumstances in which people have committed no offence whatever, a process can be initiated by the director that aims to seize their assets on the basis that it can be shown on the balance of probabilities that they have been gained as a result of criminal conduct.

The proceedings are not so much against the person as against the assets. The tainted nature of the assets is the key to whether they are liable to seizure and confiscation. It emerged in Committee as we considered part 5 that the process under civil recovery should not be considered akin to that which one might expect in normal civil litigation between citizens in England and Wales. In fact, it is wholly dissimilar. It is a process of administrative law by which the state sets out to recover assets that it believes to have a criminal origin. The scales are weighed in a way that is wholly different from what happens in ordinary civil proceedings. This is not a case of two people with competing rights going to court. It is a procedure initiated by the state against assets but, in reality, it affects the individuals holding those assets. It can have serious consequences for those individuals, who can suffer eventual bankruptcy. The procedure also attracts adverse publicity, but the Government have always treated the matter as a civil procedure.

After the Standing Committee had concluded its consideration of part 5, the Joint Committee on Human Rights provided a helpful and illuminating report on the Bill's compatibility with human rights legislation. The Joint Committee contains a number of members who are well versed in human rights law. Its report expresses serious doubts about whether part 5 is a civil procedure. I share those doubts, and that view became firmer as we scrutinised the Bill in Committee.

If it is true that part 5 is not a civil procedure, a glaring difficulty is that it is retrospective in operation. It concerns not only assets that may be acquired after the legislation comes into force, but assets that may have been acquired, subject to the 12-year limitation period, prior to that date.

Amendments Nos. 57 and 58, the first and last amendments in this group, deal with that matter. Amendment No. 57 proposes that a new subsection (3) be added to clause 249 on page 148. That clause deals with the general purposes of part 5, and the proposed new subsection states:

"No powers conferred by this Part are exercisable in relation to any property which is, or represents, property obtained through unlawful conduct prior to the coming into force of this Part."

Amendment No. 58 applies to clause 316, which is a definitions clause. The House will see that that clause allows for retrospective application, and the amendment would delete subsection (3), which states:

"For the purpose of deciding whether or not property was recoverable at any time (including times before commencement), it is to be assumed that this Part was in force at that and any other relevant time."

I suppose that a pernickety person might argue that amendment No. 58 on its own would have the effect of removing the retrospective element from this part of the Bill, but it seemed wise to spell out, by means of amendment No. 57, what the House was trying to achieve.

If the Minister believes that the Joint Committee on Human Rights is mistaken, he must provide a detailed analysis this evening of his reasoning. I am mindful that time is pressing, so I do not want to read out the details of the Joint Committee's recommendations. However, the report specifically draws the matter to the House's attention. Paragraph 26 states:

"In accordance with its view on the classification of civil recovery proceedings, the Government consider that they are not proceedings for a criminal offence or a penalty, and so do not engage the right to be free of retrospective penalties under ECHR Article 7. For reasons which we have already developed, we disagree. The Government accepts that, if it is wrong on the classification issue, the civil recovery provisions would violate ECHR Article 7 because of their retrospective operation. We draw this matter to the attention of each House."

That is a serious issue. The Minister has put his imprimatur on the Bill to say that it is ECHR compatible, but the Joint Committee set up—ultimately—under the aegis of the Government to provide scrutiny of human rights law, takes the opposite view. It would be much better for the reputation of this House if that conflict could be resolved here rather than subsequently in the courts.

One approach would be to say that, if in doubt, the House should err on the side of seeking to uphold the principles of the Human Rights Act 1998, which only so recently incorporated the ECHR into our law. The Government gave it a fanfare of publicity, and I am sure that the Minister would not want to go down in history as one of the early examples of non-compliance with the 1998 Act.

I have read the Joint Committee's report carefully, and I am bound to say that I favour its view. Everything that I have seen about the civil recovery provisions leads me to believe that they have nothing to do with ordinary civil litigation.

Three other amendments in the group tabled by the official Opposition merit consideration. They are part of a package, and allow the House to take a global view of the principles involved in part 5. Amendment No. 60 applies to clause 250, and addresses the question of what the tests in the proceedings should be to determine whether the assets arise from unlawful conduct. Unfortunately, we have not had an opportunity to look at the matter in detail in relation to confiscation, but the Government insist that the correct test in this case is the balance of probabilities.

My view, which was shared in Standing Committee by other hon. Members, is that the proper test should be the standard of proof applicable in civil proceedings. Generally speaking, that standard of proof is the balance of probabilities. That is how most issues are resolved. For example, if I am run over by a car and sue the driver, the question of whether he is responsible for my injuries through his negligence will be decided on the balance of probabilities.

However, because it is also well established that allegations are made in civil litigation that are tantamount to allegations of criminal conduct, the courts have developed principles for a higher test. That is because of the gravity of the allegations. Indeed, the test has been known to rise, effectively, to the criminal standard.

I take the view that when Parliament is initiating such a profound legislative change, it would be wise to allow a measure of discretion to the judiciary to develop, by practice, the appropriate standard within civil litigation to apply. Given the draconian nature of the consequences to the individual of the director establishing that assets have been unlawfully gained, it would be correct to allow the standard of proof applicable in civil litigation proceedings to apply.

We had a long discussion about this and I do not wish to go over it again. However, I have deep anxieties. I was concerned in Committee that, as these are not ordinary civil proceedings, the standard of proof should not simply be the same as that which applies in a county court if someone has been injured by a motor car through someone else's negligence.

It is not for us, as a Parliament, to set the way in which judges develop the standard of proof. If the judiciary wish to stick to the balance of probabilities, they can do so. If they wish to evolve a fresh or new test at an intermediate level, they should be allowed to do so. We are fettering them, and I am concerned that that may lead to injustice. I am also concerned that it may lead to the erosion of the Bill's compatibility with the Human Rights Act 1998. For that reason, I commend amendment No. 60 to the House.

Amendment No. 59 raises a fundamental issue that my hon. Friend the Member for West Dorset (Mr. Letwin) touched on when the matter was discussed on Second Reading. Clause 252 states:

"Proceedings for a recovery order may be taken by the enforcement authority in the High Court against any person who the authority thinks holds recoverable property."

My hon. Friend expressed consternation at the presence of such a word in a Bill setting out the requirements on which a judicial process should be initiated. The word "think" does not imply much at all. There should be a higher standard and burden on the director before we start dragging people through the civil courts and, as I said on Second Reading, exposing their entire finances to public scrutiny in a way which may ultimately prove unjustified.

Mark Field (Conservative, Cities of London and Westminster)

I would be interested if my hon. Friend could go into some detail about this. I am also concerned that a "think" test will be applied rather than any of the other tests that would apply to similar civil or, indeed, criminal proceedings. Can my hon. Friend go into detail about other legislation in which such a test is believed appropriate before draconian action is taken?

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to my hon. Friend for his intervention. I do not claim great expertise in reading legislation, except possibly in relation to this Bill. I simply believe that it is rather an unusual term to use in relation to an administrative judicial process for the recovery of property against individuals.

Coming back to my analogy about being run over by a motor car, if I think that the driver was negligent, I may choose to initiate proceedings. I suppose that is where the Government's notion of the director "thinking" comes from. I certainly do not need to do more than that—whether I am justified in thinking that, only the judicial process may expose. There are a number of safeguards as the process unravels, so that if I have no case, it may become increasingly difficult to sustain it.

The thing about part 5 is that these are not ordinary civil proceedings—they are heavily weighted in favour of the state. The state has power: it can put in the receivers and it can confiscate and hold the assets, pending final determination. The state is given a range of weapons—for, I might add, perfectly valid public policy reasons—but it is important that they are not deployed without good and sufficient reason. That is why to change the test to one of "reasonable grounds to believe", thereby allowing for the possibility of review or criticism if proceedings are initiated when there could not have been said to have been a reasonable ground to believe, would be an appropriate safeguard to ensure that the assets that are pursued and the people who are roped along in the process are not unfairly or unjustly victimised. As the Minister acknowledged in Committee, the legislation will work if the public see the recovery of assets and the targeting of individuals who are palpably suspected of criminality, but who have never been nailed down through the ordinary criminal process. If people run to the courts and disappear off to Strasbourg, complaining that their rights to privacy, family life and property are being interfered with by an all-encompassing state agency with enormous powers—that is what we are creating—our process of law and the House that introduced such legislation will be brought into disrepute. It is precisely that outcome that I want to avoid.

I am sure that the Minister's views and mine are absolutely identical when it comes to the legislation's desired outcome. However, I am anxious that, in their overwhelming desire to leave no loopholes by which devious criminals might suddenly escape, the Government have done rather more than close them. They have created a one-way system from which, potentially, there is no exit for the innocent until a lot of damage has been done. Amendment No. 59 goes a long way towards dealing with that issue and I commend it to the House.

Amendment No. 61 would amend clause 252, which, as I have said, states:

"Proceedings for a recovery order may be taken by the enforcement authority in the High Court against any person who the authority thinks holds recoverable property."

The amendment, which would add a new subsection (1A), states:

"No proceedings may be taken by the enforcement authority in relation to property where there has been a previous positive finding in relation to a defendant in confiscation proceedings pursuant to section 6 or 162 and the property that was the subject matter of the proceedings under section 6 or 162 includes the property sought to be recovered under this Part."

I apologise if that is a bit of a mouthful, but I was conscious in Committee that the amendment that I drafted then was deficient. I sought then, as I do now, to prevent double jeopardy, but I appreciate that the original amendment—I shall return to this point in a moment—might have had the unforeseen and unintended consequence of creating a loophole.

The House must ask itself whether it thinks it right in principle that it should be even theoretically possible for the Assets Recovery Agency to tell a person pursued in confiscation proceedings in relation to a particular asset—where the burden of proof is reversed and the asset is excluded from confiscation at the end of that process because the tests were not followed or did not succeed—"Well, we didn't get you that way, but we think we might get you by the civil recovery route." It will be remembered that the civil recovery route will be aimed at the asset, not the individual. I find that highly questionable.

As I said, I am conscious that the amendment tabled in Committee was defective. It had the unintended consequence of preventing civil recovery in a failed confiscation, even though other assets might exist that were not the subject of the original confiscation proceedings. That is why I have worded amendment No. 61 in a slightly convoluted fashion.

Edward Garnier (Conservative, Harborough)

I understand precisely what my hon. Friend is saying, but I wonder whether he can answer this question, so that I can appreciate the strength of his argument. Would not a court faced with a second claim of the type he has just described consider that there had been an abuse and strike it out on that ground, and of its own volition deal with the evil that he has identified through amendment No. 61? Perhaps he has considered that possibility and dismissed it, but I mention it now so that we can include it in our discussion.

Dominic Grieve (Conservative, Beaconsfield)

My hon. and learned Friend makes a good point. I find it difficult to say whether that might or might not happen, although my opinion was that there were no grounds for believing that it would. We are creating a statutory framework that, in many respects, overrides ordinary principles of criminal and civil law. There is nothing to prevent anyone from embarking on such a double system of recovery. If Parliament thinks that that should not be allowed, it would be wise to spell that out. I am mindful, however, that the area under discussion is not free of pitfalls. I do not wish to create loopholes and will listen carefully to the Minister's response to an amendment that is a variation on a point already raised in Committee.

I do not think that we should rely on the court's ability to strike out proceedings. For example—this may be an argument in the Government's favour—prosecuting someone who is not convicted does not prevent one from bringing civil proceedings for interference with goods if one's house has been burgled. The principle of a civil criminal recovery system is not one with which I take issue.

The problem is that we do not have such a civil criminal recovery system in this case. We are instead creating two parallel administrative law recovery systems, which are hybrids between the civil and criminal. Rather different tests apply to each. One test is onerous because a person is pushed into it if he has certain previous convictions that mean that he can be defined as having a criminal lifestyle. The other is a slightly more difficult test by which the Assets Recovery Agency may have a go at a Mr. Clean who has no previous track record of criminality.

All sorts of choices are open to the director, and the House would be wise to be aware that applying the usual test of whether the system is criminal or civil has little relevance. We are creating an administrative law recovery system for the state against individuals and assets that have a taint attached to them. We must be extremely careful about that, and I shall be grateful to hear the Government's response to amendment No. 61. They may think that the matter can be approached in another way, and I believe that it might be approached through guidelines, so I have a slightly more open mind on amendment No. 61 than on some of the others that we have debated tonight.

I have been on my feet for rather longer than I had hoped, but I had many amendments to put to the House. I hope that we may have a sensible discussion on those and on the Government amendments. In conciliatory mode, I am mindful that the Government are tabling many amendments that address comments and issues raised in Committee. I shall respond further to those amendments in due course, but I am grateful to the Minister for the way in which he has addressed those matters.

Norman Baker (Liberal Democrat, Lewes)

I shall focus on the human rights aspect with which the hon. Member for Beaconsfield (Mr. Grieve) began. I agree with much of what he has said. I hope I do not flatter him too much by saying that if the rest of the Conservative party conducted itself as he does, it might be doing better in the opinion polls and have more seats in the House. He is welcome to use that in his election literature if he wants.

Nick Hawkins (Conservative, Surrey Heath)

He can use it against the Liberal Democrat candidate.

Norman Baker (Liberal Democrat, Lewes)

We are probably too far behind to win Beaconsfield anyway.

The impact of the Human Rights Act 1998 is important. I was concerned by the Minister's response in Committee when I asked about the Bill's compatibility with the Act. The Minister referred to that tangentially earlier today. In Committee, he said that the proposal then under discussion was compatible with the Human Rights Act because the Act is to be read in conjunction with the Bill. However, I believe strongly that each piece of legislation should in itself be consistent with the human rights legislation, not least because a future Government—run not by the hon. Member for Beaconsfield, but perhaps by some of his colleagues—might repeal the Human Rights Act. Each piece of legislation must, therefore, of itself be consistent with the Act.

I raise that point because of comments made by the Joint Committee on Human Rights of which I am a member, as is the hon. Member for Redcar (Vera Baird), who is in the Chamber. The hon. Member for Beaconsfield quoted from the Committee's 11th report, which was agreed unanimously by all three parties and both Houses. There was no dispute in the Joint Committee as to the direct language used about the clauses that we are considering.

I shall not read out the whole report, but shall select some portions to which I hope the Minister will respond later. Paragraph 20 of the report states:

"If domestic law classifies a matter as criminal, it will be treated by the European Court of Human Rights as criminal under the ECHR, automatically attracting all the safeguards accorded to defendants in criminal proceedings."

There is agreement on that point. However, the paragraph continues:

"If domestic law classifies the proceedings as civil, that carries relatively little weight under the ECHR. The reason is that giving domestic classification any real weight would make it too easy for a State to deprive people of the protection of appropriate standards of criminal procedure, merely by reclassifying matters as civil. We are therefore not swayed by the decision in the Bill to characterize the proposed new regime as civil."

That was one of the key paragraphs in the report. Another was paragraph 24, in which the Committee concludes:

"Taking all these matters into account, we consider that the Government's confidence that the civil recovery process would be treated as civil, rather than criminal, for ECHR purposes is not justified."

Furthermore, paragraph 26—to which the hon. Member for Beaconsfield referred—states:

"The Government accepts that, if it is wrong on the classification issue, the civil recovery provisions would violate ECHR Article 7 because of their retrospective operation."

I do not criticise the Minister for not giving a detailed response to those conclusions as they were only recently published, but we need him to explain why the provisions would not fail the ECHR test under article 7. Is he confident that the word "civil" is not a misdescription of either a criminal or hybrid system as regards ECHR law?

I turn now to the arguments about the balance of probabilities although I do not want to repeat points made in Committee. The Bill's powers are far reaching. An appropriate balance must be struck. We must ensure that criminals and those who benefit from the proceeds of crime are properly apprehended and charged or have their assets seized, as appropriate; but it is equally important not to do injustice to innocent people by setting standards and thresholds that are so high that they cannot convince the relevant authorities of their innocence.

I am not sure that the Government have got that balance right, especially given my comments and those of the hon. Member for Beaconsfield about the human rights implications. That is why I draw the Minister's attention to our amendment No. 201, although I freely confess that it would introduce a novel form of safeguard. It would replace the words

"decide on a balance of probabilities"

with the phrase

"give the benefit of the doubt to the person whose property is the subject of these proceedings in deciding".

We have chosen that form of words because we are confident that the Government would not wish to see a major increase in the threshold, which would defeat their purpose.

We want to draw attention to the fact that we are uncomfortable with the phrase "balance of probabilities". We are seeking a way marginally to improve the protection for innocent parties without weakening the legislation in a way that would defeat the object of the Bill. That is why we suggest the phrase that we do, which I discussed with John Wadham of Liberty the other day; I hope that the Government will look on it kindly—we are always optimistic.

I fully support amendment No. 59, tabled by Conservative Members. The word "thinks" looks entirely out of place in clause 252. It is the sort of word that some of us might have included in an amendment after being a Member for a couple of months; it is not the sort of word that one expects Government draftsmen or Ministers to use, although I do not blame any individual for using it. I am sure that the Minister will take responsibility for any bad drafting in the Bill.

The suggested alternative phrase—"has reasonable grounds to believe"—appears regularly in legislation and is commonly understood by legislators and those in the courts. It is a reasonable phrase to include. After all, if a person, or an authority, does not have reasonable grounds to believe something, how can he or she proceed? The word "thinks" is a rather looser term, which defies tight description, so I hope that the Government will consider that amendment sympathetically.

I shall conclude my remarks because I want to give other hon. Members a chance to contribute and to ensure that we move on to later groups of amendments, but we are dealing with important issues, especially given the conjunction or interface—to use that dreadful word—with human rights legislation. It is simply not good enough for the Minister to say that the Human Rights Act exists so we should not worry as the courts will deal with such issues later. The Bill should reflect the fact that Parliament has passed the Human Rights Act, not simply as an adjunct but in the Bill itself.

Edward Garnier (Conservative, Harborough)

I, too, will be as brief as I can, given what has been said already. I turn first to amendment No. 57. I agree with the hon. Member for Lewes (Norman Baker) that European convention jurisprudence is not concerned so much with what Governments think—if I can use that word—but with the effect of any provision. Certainly on first blush, clause 249 involves a criminal penalty, and to dress it up as part of a civil proceeding does not rescue the Government from that problem. Given that, in effect, a criminal penalty will be exacted, the evil of retrospection ought to be carefully guarded against.

Powers of retrospection seem to be increasingly introduced into this country's criminal law, but as often as not they are confined to serious terrorist activities. I shall be corrected by the Minister who knows an awful lot about this, but I think that the terrorist statutes that the House has passed in the past two or three years are examples of laws where retrospection has been accepted to a greater or lesser extent.

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

The hon. and learned Gentleman speaks about the evils of retrospection and is prepared to accept them for terrorist offences, but does he accept that more people have been killed in my constituency as a result of drug misuse than by terrorist activity and, therefore, that the significance of retrospection should be considered in that context as well as simply in that of terrorism?

Edward Garnier (Conservative, Harborough)

I am not an expert on the hon. Gentleman's constituency or on how people die in it. I dare say that what he says is perfectly true. However, we are not talking about criminal offences but about what the Government claim is civil recovery. If he is right, he should confine his remarks to the criminal law. We should not introduce retrospection into civil law, which this part of the Bill claims to be about.

On the points made by my hon. Friend the Member for Beaconsfield (Mr. Grieve) and the hon. Member for Lewes, the Government should inform us of their view of article 7 of the convention, of which I am sure the hon. Member for Glasgow, Pollok (Mr. Davidson) is aware. If they did, we would be able to understand what lies behind their thought processes in relation to part 5. I do not need to labour those points—they have been made already with considerable force by my hon. Friend the Member for Beaconsfield—but they are there to be answered. I take it that the report of the Joint Committee on Human Rights has recently been published, although I regret that I have not read it. The Government have therefore not yet had a chance to reply in full or had a chance to indicate whether they intend to reply at all. I dare say that somebody will assist me on that.

Amendment No. 60 deals with the question of the balance of probabilities and/or the standard of proof applicable in civil proceedings under clause 250(3). My hon. Friend was right to say at the outset that in all civil proceedings the general standard of proof is based on the balance of probabilities. However, in those proceedings, the judge or jury will be advised to consider a particular allegation in a slightly different way. In my field of defamation, a defendant publisher will often want to allege that it is true that the claimant is guilty of fraud or some other hugely antisocial activity. By and large, the more serious the allegation that is being made, the greater the degree of proof that the court will require to be satisfied that it has occurred.

In the context of a Bill that deals with serious criminal activity—whether it be drug trafficking, money laundering or another serious crime—we are dealing, as a sub-set of that, with civil recovery by the agency of unlawful proceeds, which is, in effect, a criminal penalty. It certainly seems to me that it would be just that the court should not accede to the claim issued by the authority unless the wording of amendment No. 60 were taken into account. To use the expression "balance of probabilities" is, in these circumstances, insufficient. I urge the Government to think carefully about what my hon. Friend has said.

Amendment No. 59 refers to clause 252. There has already been criticism of the use of the word "thinks". Although it is an English word that is easily understood, I am not sure that it is the right one to use in this context. Not all thoughts are necessarily rational or based on evidence or fact; they may be based on other factors. I dare say that the authority—or the director who runs the authority—would not wish to mount a claim on an irrational basis simply because it thought that somebody held recoverable property. None the less, it is an unwise word to use in this Bill even though an element of protection might be provided by the pleadings process that the authority will have to employ to mount its claim. We know that the enforcement authority must serve a claim form, which used to be called a writ, and a particulars of claim, which used to be called a statement of claim. No doubt those two documents—or one document, if one is endorsed on the other—will set out properly the basis on which the case is to be deployed. If that is so, there is no harm in the Bill reflecting the need for something more than thought to be the basis on which a claim is mounted.

My hon. Friend's arguments in support of amendment No. 59 are unanswerable. It would be sensible, wise and just to replace "thinks" with

"has reasonable grounds to believe".

That does not damage the Bill. Indeed, it makes it more respectable. The same could be said of clause 253(1), which relates to Scotland.

My hon. Friend's amendments would not damage or wreck the Bill. Indeed, they would enhance its ability to do what the Government intend. I trust that the Minister, having listened to what my hon. Friend and the hon. Member for Lewes said—even if he ignores what I have said—will conclude that the amendments are good and give them serious consideration. I hope that he accepts them.

Vera Baird (Labour, Redcar)

Amendment No. 57 deals with retrospectivity, which is a theoretical issue at the moment and is part and parcel of whether the proceedings are criminal or civil. If what the Government call civil turns out to be criminal, the retrospectivity will make the proceedings incompatible with the European convention on human rights. On the other hand, it is good that we will have the power to seize the proceeds of a crime committed a long time ago or the day before the Bill comes into force. What were criminal goods before that date will retain the quality of criminal goods after it and should be seized. While the procedure remains civil, the problem with retrospectivity is relatively small.

Amendment No. 60 deals with the standard of proof. Current legislation uses the standard of proof that is applicable to civil proceedings. The draft Bill used the same standard of proof. The Government have changed that—if change it be—to the balance of probabilities. The issue is whether the change is cosmetic and whether it matters. Opposition Members said that common law authorities have noted that even if proceedings take place on the civil standard of proof, the fact that the complaint involves a criminal allegation requires that standard to slide upwards in relation to the criminality and the consequences that follow.

Interestingly, having accepted that that principle is right—indeed, I have experienced it and implemented it in court many times and seen the sense of it—we must consider a problem that was recently set out by Lord Bingham in a case in 2001. He said:

"It should, however, be clearly recognised . . . that the civil standard of proof does not invariably mean a bare balance of probability . . . The civil standard is a flexible standard to be applied with greater or lesser strictness according to the seriousness of what has to be proved and the implications of proving those matters."

The difficulty is contained in what he went on to say:

"I have no doubt that, in deciding whether the"—

question in respect of truth of criminality—

"is fulfilled, a magistrates' court should apply a civil standard of proof which will for all practical purposes be indistinguishable from the criminal standard."

Granted, the Bill sets out, and the background documentation sets out as a policy, a hierarchy of proceedings so that the choice will be to prosecute on the criminal burden of proof when prosecution is possible and to resort to civil recovery only when it is not. It is not practical for the burden of proof in civil recovery ever to be as high as that in criminal proceedings, or one would not be able to succeed where one had already failed. Consequently, there are real conundrums in respect of the standard of proof.

I looked, as a good lawyer would, to an evidence textbook to muddy the waters even further. I found in the latest edition of the textbook, that the civil standard of proof and the balance of probabilities were dealt with as though they were exactly the same thing. I comfort myself in this way: under clause 6(7), the court has to decide on the balance of probabilities the issues that arise under that clause, and under subsections (4) and (5) in particular. When it comes to the big decisions to be taken under clause 11, and to whether or not the assumptions should bite—that will be the penal bite of this aspect of the Bill—the court will not have to apply a standard of proof at all. It has to be satisfied that there is not a serious risk of injustice if the director's application is granted.

As I have understood it throughout my practising life, when a judge is considering the question of an injustice, he does not apply a burden or standard of proof on either side; he uses his experience and reason and makes a proper decision. Consequently, the backstop, which encourages me to think that the amendment is not as necessary as it might have first appeared, is that one can, I suspect, leave the balance of probabilities to be applied by the judiciary within the confines of what is acceptable.

Edward Garnier (Conservative, Harborough)

Is not the point that the hon. Lady is drawing to our attention that most decisions reached by the courts do not depend on the burden of proof but are much affected by the standard of proof? The burden of proof is who has the duty of proving a particular thing, and the courts are not always very worried about that. They are interested in the quality of the evidence in front of them and the standard to which it has to be proved.

Vera Baird (Labour, Redcar)

I know what the hon. and learned Gentleman means, but I have argued time and again at the Court of Appeal, when it is eminently in my interest and that of my client to do so and when the issue is injustice, that the burden of proof falls on one side, and I have repeatedly been faced with the answer that it does not. I have been told that when the issue is one of injustice, what is important is the judge's properly reasoned view of what is just and what is not.

As a backstop provision, that comforts me into thinking that however doubtful one might be, there is that difficult conundrum that the civil burden of proof, is capable of rising up until its application becomes wholly impractical. The Government will already have tried to prosecute the person concerned and will be unable, on the same standard of proof, to take away his property under civil recovery proceedings.

I conclude my remarks on this difficult issue by saying that, as long as these are civil proceedings, it is acceptable to leave the question to the judiciary. If they become criminal proceedings, we will have to think again.

Mark Field (Conservative, Cities of London and Westminster)

We have spoken at great length on this matter, so I shall keep my comments brief because I shall be interested to hear what the Minister has to say. I agreed almost entirely with the remarks of my hon. Friend the Member for Beaconsfield (Mr. Grieve).

Part 5 has been the crux of Opposition Members' concern, both in Committee and on Second Reading. I fully understand the inevitable frustrations of many Labour Members, which, as usual, were vocally expressed by the hon. Member for Glasgow, Pollok (Mr. Davidson), when individuals are seen to get away with blue murder, or at least with the proceeds of their crime. I hope that Members on both sides of the House accept our concern about many aspects of part 5. I probably go a wee bit further than my hon. Friend the Member for Beaconsfield, who, in his perennially consensual way, talked about our agreement with the main thrust of the proposals. I agree with the basic long-term aims of part 5, but I have deep concerns about the way in which the Government propose to introduce it. As has been said in relation to amendment No. 57 and the issue of retrospective recovery, we are trying to make a civil recovery test when we are dealing with criminal activity. There is therefore great concern that we are muddying the judicial waters.

On amendment No. 60, there is, as a number of Members have said, great concern about using the test of a balance of probabilities, rather than a test based on a decision beyond reasonable doubt. The hon. Member for Redcar (Vera Baird) made an extremely good point that is slightly unanswerable: that if we move towards a test based on a decision beyond reasonable doubt, many other amendments that we may wish to make would inevitably fall away. I entirely understand where the hon. Lady is coming from, but equally I would like the Minister to say something about the proposals in amendment No. 60, which, broadly speaking, rehearses arguments that we made in Committee.

On amendment No. 59, there is understandable concern about the power of the state, which, to many people with a libertarian cast of mind, is being unacceptably extended by the Bill. The state will have an almost overwhelming power; there is an assumption that if an individual is not prepared to tell all and sundry about the state of their bank account and assets they will quickly find themselves under full-frontal assault by a number of different state agencies, not least the all-powerful Assets Recovery Agency. I am interested to hear what the Minister has to say, but the use of the word "thinks" in clause 252 is symptomatic of the state's all-embracing power. At the very least, it should be substituted by words such as "reasonable grounds".

Norman Baker (Liberal Democrat, Lewes)

The words "thinks" is a test that the ARA applies to an individual. It can say, "Well, we did think that", and that is all that has to be satisfied, whereas the criterion in the amendment based on "reasonable grounds to believe" is external and has to be justified and validated by someone else.

Mark Field (Conservative, Cities of London and Westminster)

I thank the hon. Gentleman and entirely agree that that is our core concern. I should be grateful if the Minister elucidated other cases in which such power rests with a state organ and in which there is simply a test on its director to think rather than believe or have reasonable grounds to believe.

I shall not harp on, as other Members have done, particularly the hon. Member for Lewes (Norman Baker), about human rights aspects of the Bill. That ground has been covered; Members will know that had I been in the House when it discussed our country becoming a signatory to a lot of European human rights legislation, I would not have supported that proposal. We all want to make sure that the Bill works. Nothing could be worse than finding ourselves in a position where a number of high-profile cases fell through simply because the European court of human rights could interfere, and the legislation became a jamboree for a lot of human rights lawyers. That is not a sensible way forward, particularly given the long-term goals of the Bill and the ideas that have understandably been put in place.

My hon. Friend the Member for Beaconsfield was right that there are no loopholes through which wrongdoers can possibly escape; the risk, however, is that a lot of innocent people will be put through the mill.

On amendment No. 61, concern has been expressed about what is almost a double-whammy in terms of the underlying intention of the Bill. I fear that the Assets Recovery Agency will be put under great pressure to produce results, with an increasing temptation for it or other organs of the state to go through the process of a second prosecution.

Clause 287 deals with compensation—I know that it arises elsewhere in the Bill, but it is obviously specific to part 5. Amendment No. 62 seeks to bring a certain level of justice into play by accepting that a receiver or interim administrator can initiate a course of action without culpability.

Dominic Grieve (Conservative, Beaconsfield)

In a desire to sit down and allow the debate to progress, I inadvertently failed to comment on amendment No. 62, whose importance my hon. Friend clearly appreciates. He may agree that the reason for that importance is that the Bill as it stands allows a defendant to obtain compensation in respect of a civil recovery, but not a third party that has been affected by the actions of the receiver. As the process is initiated by the state and may leave a third party at a grave disadvantage, that appears rather surprising, as he may agree.

Mark Field (Conservative, Cities of London and Westminster)

Something might be said about organ grinders and monkeys—but perhaps I am being a little too harsh on myself. My hon. Friend is absolutely right that the innocent person must be protected. The current provisions establish a convoluted route; in effect, as he says, a defendant can get compensation if his interests have been upset, but a third party will always have to be put into the shoes of a defendant in order to do so. That is why some amendment is necessary to protect the interests of other persons.

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

I rise to speak with some trepidation, given that so many learned Members have spoken. The implication in such debates is always that the rest of us are not so learned. Allow me to confirm that prejudice by speaking from a non-legal background, as this is one of those debates where the voice of non-lawyers ought to be heard.

Norman Baker (Liberal Democrat, Lewes)

That includes me.

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

The hon. Gentleman is a Liberal, and I am never quite sure what category the Liberals fall into. They certainly have a natural tendency to bore.

I speak as someone who has been generally committed to the principles of civil liberty. For a long time, I was a member of the executive of the SCCL, the Scottish Council for Civil Liberties, so I do not approach these matters from an intolerant point of view. As the hon. Member for Lewes (Norman Baker) and some other hon. Members said, however, we are considering a question of balance. I have heard little to indicate that many hon. Members, especially Opposition Members, appreciate what is happening in the lives of constituents and understand how they are adversely affected by the actions of those whom we wish to pursue by introducing the Bill.

I appreciate that criminals have rights. I accept that they will want to hire the best lawyers whom they can afford to defend them, and that the job of those lawyers is to find loopholes and tricks to get their clients off, even though they might be as guilty as sin and the lawyers might know that. I recognise that that is all part of the game, but it must also be recognised that my constituents have rights. They have a right to expect criminals to be taken off the streets. There are families in my constituency who never go out together because they are afraid not to leave someone in the house, because they know that if they do so it will be broken into by people looking for something to steal and sell in order to feed their drug habit.

I know that some of those points are Second or Third Reading issues, but these matters must be seen in context. The Bill must be considered in the context of the perils and difficulties faced by people outside. I am struck constantly—

Norman Baker (Liberal Democrat, Lewes)

rose—

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

I am struck constantly by the hon. Gentleman, to whom I shall give way.

Norman Baker (Liberal Democrat, Lewes)

There are three categories of people involved here. First, there are the criminals who want to hire the best lawyers, as the hon. Gentleman puts it; that is the category that the Government want to pursue. Secondly, there are the hon. Gentleman's constituents, who are entirely innocent and the victims of crime. Thirdly, there are those who may be innocent but who might be swept up by the provisions of the Bill and who may not be able, if the thresholds are set too high, to escape from the one-way street that the hon. Member for Beaconsfield described. That could include some of the hon. Gentleman's constituents. That is the category of people about whom we are concerned.

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

I understand that, and I have some sympathy for that position. However, given what I have heard from Conservative Members in particular, I suspect that they are using that group that they wish to defend to try to weaken the legislation in a way that will benefit them and theirs. They are trying consistently today, as they did in Committee, to water down the Bill and to take out its teeth. On these matters, the Tories are soft on crime and soft on criminals, and that is an issue on which I feel strongly.

Looking at amendment No. 57 in terms of plain English, it seems to propose—perhaps I am misreading it—that a defence in these circumstances would be to say, "This money was stolen before the Act came into force, so you can't touch it." That might be a good game for lawyers, but people outside in the real world would regard it as ludicrous. Yet that is what the amendment seems to be all about. The Conservatives seem to want to water down the Bill, to weaken it and to try to draw the teeth from it.

I understand the point about retrospectivity; after all, we must remember that, by his own confession, the hon. Member for Beaconsfield is descended from cattle and sheep thieves and therefore has a vested interest in this matter. [Interruption.] Yes! The other Members on the Conservative Front Bench did not know that, but in his maiden speech he confessed to being descended from cattle and sheep thieves in the Borders. Indeed, as the shadow Home Secretary is here, perhaps I could just mention, Mr. Lord, as it is directly relevant—

Michael Lord (Deputy Speaker, Central Suffolk and North Ipswich)

Order. First, the hon. Gentleman must address the Chair correctly. Secondly, I think that he is now in danger of wandering off down—dare I say?—sheep tracks.

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

I take that point. Last week or the week before, when I was coming into the House, I passed the hon. Member for Cities of London and Westminster (Mr. Field). He gave me a cheery little wave and said, "I'm off to launder some money." I hope that that will also be taken into account when the future of the said Member is discussed. But it would be irrelevant for me to pursue that matter further, so I shall not do so.

Much of the discussion that we have heard from lawyers has smacked of how many angels can dance on the head of a pin. I recognise that the issues are important, but hon. Members ought also to bear in mind the wider circumstances outside. We have a responsibility to ensure that we are not overly self-indulgent, and that we remember the people whom we represent. I am quite clear as to what the people I represent want me to pursue: draconian measures against those who blight their lives.

I hope that the Under-Secretary, who, along with his colleague, the Minister of State, Scotland Office, has been extremely agreeable during this exercise today as well as in Committee, is not going to be too agreeable in conceding too much ground. The Under-Secretary has, of course, got form, having been a Whip in the past, and I know that he wants to demonstrate that he is not just a mindless thug. He wants to show that there is actually a heart there, but I hope that he will not do that by weakening the legislation.

It would be entirely out of order for me to observe that SNP Members are at last back in their places here, despite having played absolutely no part in the work of the Committee, because they chose not to apply to the Liberals for a place on it.

Annabelle Ewing (Scottish National Party, Perth)

rose—

Michael Weir (Scottish National Party, Angus)

rose—

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

I shall give way to the lady first.

Annabelle Ewing (Scottish National Party, Perth)

We have been over that ground and such comments were ruled out of order by the Chair. The hon. Gentleman should respect the wishes of the Chair.

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

Well, well, well: trying to get protection from the teacher—that is an old one. The hon. Lady has not answered the point and the fact is that the SNP did not ask for a place on the Committee. The hon. Member for Lewes, with whom I do not always agree, is shaking his head, so it must be true.

Michael Weir (Scottish National Party, Angus)

rose—

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

I give way to the other nationalist.

Michael Weir (Scottish National Party, Angus)

As my hon. Friend the Member for Perth (Annabelle Ewing) pointed out, that matter has been discussed in great detail. I worry about the hon. Gentleman, who seems to have an unhealthy obsession with it. It has been well discussed in the debate and he would do better if he commented on the merits of this matter.

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

I thank the hon. Gentleman for that point, but I, of course, have been able to discuss the merits of this and other matters at considerable length, because I was a member of the Committee. I volunteered to serve, as did many of my colleagues here, but, unless I am mistaken, there was no nationalist on the Committee. Indeed, not a single one of them asked to be on the Committee. If those remarks are out of order, the Speaker would point it out to me.

Michael Martin (Speaker, Glasgow Springburn)

Order. I have just arrived in the Chamber. The hon. Gentleman's remarks are out of order, because he is implying that the Committee of Selection got it wrong, and he would not want to do that. He is questioning the Committee of Selection procedure.

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

I certainly would not wish to question the Committee of Selection in any way whatever. Its members are a fine body of men indeed, and women. I was once a member, but my understanding is that the Committee selects only from those who volunteer or are volunteered. As the nationalists were not volunteered—

Michael Martin (Speaker, Glasgow Springburn)

Order. The hon. Gentleman has got it wrong. Sometimes hon. Members are conscripted. We will now speak to the amendment, and if he does that there is no way he can go wrong.

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

I shall conclude. I was tempted to say "finally", but, as the hon. Member for Surrey Heath (Mr. Hawkins) knows, when a Member uses that word he is often only 40 per cent. through his speech and wants to give the audience hope.

I hope that the Minister does not weaken on the legislation in any way. There are teeth in it and it is essential that they remain, because there are serious people out there who need to be bitten.

If people in my community and in the communities represented by many other Members who have considered the Bill are to be safer, action must be taken against the major criminals who curse our society and, indeed, against their collaborators. Those criminals could not survive without the collaboration of some lawyers, accountants, bankers and others in the financial community. The sooner the legislation goes through the House and starts to bite the criminals and their allies, the better.

David Wilshire (Conservative, Spelthorne)

I am delighted to follow the hon. Member for Glasgow, Pollok (Mr. Davidson) and pleased to see that he is back on form. I can only conclude that he has recovered from his beloved Scottish rugby team's defeat at the hands of the English. I am glad that he is better and over it. I am also pleased that he made his little speech about watering down provisions only once, because that means that I have to say only once that the amendment is simply an attempt to make the Bill fair and just and nothing to do with watering it down. I think he understands that, but he prefers to suggest that he does not.

Tom Harris (Labour, Glasgow Cathcart)

Does the hon. Gentleman not accept that amendment No. 57 specifically aims to water down the legislation by ruling out retrospection? It would therefore give any criminals with an eye on the Chamber plenty of notice and allow them to hide their ill-gotten gains if they so wish.

David Wilshire (Conservative, Spelthorne)

I do not agree one little bit. The amendment would introduce fairness and justice, exactly as I suggest, when draconian measures, which are neither fair nor just, are being proposed by the Government. The hon. Member for Glasgow, Pollok made a remark with which I agree: there is a point when a layman's common sense may add to the erudition of the lawyers, who are being technical and wise.

It is blindingly obvious to me, as a layman, that although what we are discussing is entitled "Civil recovery", it is actually all about criminality. We are discussing confiscation and seizure, which are penalties for criminality. Seizing or confiscating in this context is not a civil matter. It is a penalty, arising in this instance from assets acquired criminally. If such assets are to be seized, sooner or later it must be demonstrated that they were the proceeds of crime. As a layman, I am struggling to understand what civil recovery and civil law have to do with criminality.

My hon. Friend the Member for Beaconsfield (Mr. Grieve) gave another reason for supporting the amendment when he pointed out that, under the Bill as it stands, it would be possible to go back 12 years to seize assets. Even if we accept that retrospection should be possible, that is surely excessive. Anyone seeking to defend himself against the seizure of business assets—the chances are that a business will be involved somewhere, rather than stashes of £5 notes all over the place—is unlikely to have records going back further than six years, because that is the point at which the Inland Revenue says that it is not necessary to keep them.

I hope the Minister will explain in detail why he and his advisers reached the opposite conclusion from the Joint Committee. We are aware that there is a difference of opinion between two groups who have studied the same facts, and I think it entirely proper that Parliament should resolve the issue rather than passing legislation that we know will require judicial sorting out. If we are to sort it out, however, the Minister must give us the facts.

Amendment No. 60 also strikes me as reasonable. I do not see it as a watering down; I see it as allowing the courts to do what they are good at—using their discretion on the basis of the facts before them in each case. The Government seem to be trying to make the courts into a rubber stamp. They want to say "We, the Government, wish this to happen; you, the court, will do what you are told rather than what you consider to be just and fair."

As my hon. Friend the Member for Beaconsfield said, there might be grave circumstances in which it would be appropriate to increase the burden of proof. Some of the consequences of action taken under civil recovery provisions may involve the loss of irreplaceable assets. Under the Bill, seized assets can be sold ahead of a resolution of the issue. In that event, assets that could not be replaced because they were unique would disappear.

Grave consequences could also arise from the seizure of business assets. The owner of the business might lose trade—a part of his livelihood—that could not be recovered later. That would probably mean the closure of the business even if the attempt to confiscate the assets ultimately failed. In those circumstances, too, the burden of proof should be increased.

In an earlier debate this evening, we discussed the possibility of spouses and children being made homeless. If ever there was something that was grave and serious, it is that. I would argue that the burden of proof in such issues should be higher than is proposed in the Bill.

My hon. and learned Friend the Member for Harborough (Mr. Garnier) made the fair point that not all thoughts are factually based. I would go one stage further and say that not all thoughts are of themselves guaranteed to be just and fair—the argument that I have used on the other two amendments. If the director "thinks" unjust or unfair thoughts, he still thinks them. Under the Bill, that gives him the power to act. That cannot be right.

In Committee, the hon. Member for Glasgow, Pollok asserted that the simple act of carrying £25,000 in cash was almost proof of criminal activity. He felt that that would be proceeds of crime because he could not conceive of anyone under any circumstances carrying such an amount unless they were criminals. In that example, the hon. Gentleman "thinks" that he has the evidence that he needs to take action. What appeal can there be against him, as he has simply asserted that that is what he thinks? There can be no appeal against that, which is why we should introduce some concept of "reasonable grounds".

I would not wish to test your patience, Mr. Speaker, by rehearsing the debate we had in Committee about why it is possible to carry £25,000 in cash and not be a criminal. It is important that we are allowed to ask whether the agency has reasonable grounds for believing, rather than thinking, something. That is why I believe that amendment No. 59 should be sorted—I mean supported. [Interruption.] Some might think that it also needs to be sorted; others may think that I should be sorted. The hon. Member for Glasgow, Pollok has said that more than once in Committee.

Amendment No. 61 concerns double jeopardy. The highlight of the day for me is to hear two of my expert legal friends offering two different views of what something means. I would not wish to choose between my hon. and learned Friend the Member for Harborough and my hon. Friend the Member for Beaconsfield. Afterwards, they can sort out how the court would act, because that is not as important as the principle that there should not be double jeopardy. For the avoidance of doubt, we should support the amendment to ensure that that cannot happen, whatever the court may or may not do.

My hon. Friend the Member for Cities of London and Westminster (Mr. Field) was right to say that amendment No. 62 is also important. The principle of paying compensation when things go wrong is established and accepted by the Government. It is important that that should be fair and just to all those people who are involved. It is perfectly possible to have a partnership of several people where all but one of them are totally innocent and ignorant of what one partner is doing. If action is taken against one of the partners and subsequently fails, that single partner, under the Bill, will have some redress by way of compensation. If the business has been disrupted by seizure and by the failure of that action, all the partners in the business will suffer equally, but the Bill will allow only one to receive compensation.

A great deal more could be said, and it might be useful to hear the Government's view of their amendments. We may well wish to debate those but, for now, I shall just say that I should like to return to the matter if the Government provoke me on their amendments.

Paul Stinchcombe (Labour, Wellingborough)

I speak with some trepidation, standing in front of my hon. Friend the Member for Glasgow, Pollok (Mr. Davidson), because I am a lawyer who practised in part in human rights law, and many of my former colleagues are in Matrix chambers. We have to be careful to ensure that the Bill is fully compatible with the European convention and the Human Rights Act 1998, which I spoke in favour of, as did the hon. Member for Beaconsfield (Mr. Grieve), the only difference being that I voted for it and he refused to do so.

There is a tension between the Bill and some elements of the Human Rights Act, as can clearly be seen in some of the different definitions of unlawful and criminal conduct. Close examination of those provisions shows that the Government are striving to ensure that the hierarchy of procedures and processes that they are setting up is fully compatible with the Act, targeting different remedies at different behaviours in an appropriate way. There is clearly some tension, so we must be especially careful in our scrutiny.

We must give full credence to the three categories of persons talked about by the hon. Member for Lewes (Norman Baker): we want to confiscate unlawful proceeds from the guilty while protecting both the victims—the people who die of drug addiction and those whose property is stolen by drug addicts—and the other innocent people who could get swept up in the process. We must strike that balance.

Opposition Members say that the amendment does not water down the Bill, but it clearly does. It precisely targets people who are guilty and puts them outside the parameters of the legislation. In terms, it targets people who have property that is the proceeds of unlawful conduct and exonerates them from having that property recovered under the civil procedure. That simply cannot be right.

The hon. Member for Beaconsfield spoke about that part of the Bill being a close from which the innocent should be able to escape, but the amendment would make it a road that the guilty never enter.

Bob Ainsworth (Labour, Coventry North East)

I will not be able to go into detail on all the amendments, not because they are not worthy of discussion but because we walked all over most of this ground in Committee at great length. However, I want to deal with the points made by the Human Rights Committee and to go into some detail about the word "thinks", which appears to be exercising Members so greatly.

On amendments Nos. 57, 58 and 202, both the new civil recovery scheme and the expanded cash forfeiture scheme use the concept of recoverable property. By virtue of clause 316(3), the unlawful conduct that generated the recoverable property is not confined to conduct that took place after the commencement of the Act. That will enable the two schemes to have complete and immediate effect, allowing recovery of property that has already been obtained through unlawful conduct when the Act comes into force. To that extent, it has a retroactive effect.

The retroactive effect is circumscribed by clause 291, which imposes a limitation of 12 years. When we introduced the Bill, we did so to tackle a problem that we have now. I believe that it is important—and our constituents would consider it important—for the legislation to begin to bite now, rather than biting slowly over the next six, 12 or however many years. The present legislation clearly does not work well. There is abundant evidence that people are enjoying wealth that they have obtained illegally. The Government at least do not want to create what in effect would be an amnesty, which would be the result of stopping the retroactive operation of the Bill. If the amendment were accepted, people would consider what they possessed to be safe. Lawyers would advise clients, in no uncertain terms, to hang on to what they acquired before the Proceeds of Crime Bill became law, as that could not be touched.

As my hon. Friend the Member for Wellingborough (Mr. Stinchcombe) very capably pointed out, that has nothing to do with protecting the innocent. I accept that Opposition Members have made much constructive comment on the Bill, but on this matter, as on some others, the Opposition leave themselves open to the allegation that they are soft on crime. If they continue to push the line that retrospection in any form should not be allowed, that allegation becomes increasingly justified.

Dominic Grieve (Conservative, Beaconsfield)

The Minister may be missing the point. I share his desire to seize criminal assets, and to see prosecuted those people who have committed actions that I consider to be reprehensible. However, that does not allow me to pass retrospective criminal legislation. That is a well-established principle, and the Joint Committee on Human Rights has said that it fears that the structure being established by the Bill would do precisely that.

Bob Ainsworth (Labour, Coventry North East)

I shall therefore move on to the important point, which is not to do with amendment No 57. It was made by my hon. Friend the Member for Redcar (Vera Baird), who spoke about the definition that applies to this part of the Bill, and its consequences. The hon. Member for Beaconsfield (Mr. Grieve) talks about retrospective criminal legislation, and he knows far better than I do that applying that definition to the Bill would cause problems with retrospection.

We believe that the provisions in the Bill are justified. There is no question that retroactivity will be applied to the definitions of what counts as unlawful conduct. We accept that the retrospective nature of the civil recovery proceedings depends on the fact that civil recovery is not regarded as a criminal penalty, for the purposes of the ECHR. That was the central point made by my hon. Friend the Member for Redcar.

We note that the Joint Committee on Human Rights has expressed reservations about the view that the Government have taken—that civil recovery does not amount to a criminal penalty. However, we note also that the Committee accepted that the matter has not been decided conclusively, either way, in existing case law. Civil recovery is, of course, a brand new procedure for the United Kingdom. We continue to believe that civil recovery should properly be regarded as a civil procedure.

Civil recovery is operated successfully in other countries. For example, Ireland, which has accepted the ECHR, has signed up to the same procedures as the United Kingdom. We are not persuaded that the scheme that we have created should be characterised as anything other than civil. As my hon. Friends have said, we have struggled to ensure that we have stayed within that definition and made this part of the Bill appropriate to be classified as civil. We fully understand that these powers are extensive, but we believe that we are on the right side of the line. That is the advice that we have had, and we continue to take that view, notwithstanding the views expressed by the Joint Committee on Human Rights.

Norman Baker (Liberal Democrat, Lewes)

I have listened to the Minister carefully. The Human Rights Committee report was published only this month. What steps has the Minister taken to seek legal advice subsequent to the report's publication to check his initial conclusions, which were reached before the report was published?

Bob Ainsworth (Labour, Coventry North East)

I am not a lawyer, as the hon. Gentleman knows, and neither is he. I have taken legal advice on the Bill, as appropriate, from when I assumed responsibility for it last summer. I continue to take legal advice on the Bill and anything that has an impact on it, and I assure the hon. Gentleman that I will continue to do so. He writes me off as a cavalier person who is not the least interested in human rights considerations but wants only to catch criminals, whatever the expense. That is a caricature. I accept that we have a very real problem and that we need to deal with it. The proportionality and need for the legislation are an important part of the argument about whether it is compliant with the European convention on human rights.

We considered some time ago whether to limit the retrospective nature of the scheme to a defined period of time. Our preliminary view was that we should not. However, we made it clear in the Command Paper issued earlier this year that we wanted to think about it further. We concluded that while we wanted to ensure that civil recovery proceedings will be as effective as possible, the introduction of a limitation period would nevertheless be appropriate. We have therefore specified that it should be 12 years.

Amendments Nos. 201 and 60 deal with issues that we tramped all over in Committee. We believe that the balance of probabilities is the appropriate test. Amendment No. 201 contains a formulation about giving the benefit of the doubt to the person whose property is subject to these proceedings. Amendment No. 60 calls for the application of the civil standard of proof.

As we said at length in Committee, the balance of probabilities is the normal standard of proof applicable to civil proceedings. However, some limited civil proceedings attract the criminal standard of proof. Amendment No. 60 would therefore make the position less clear in our view. The wording in the Bill achieves what we intend to do in a way that a reference to the standard applicable to civil proceedings would not. Some civil proceedings, notably the applications for contempt of court, attract the criminal standard of proof.

In Committee, I quoted from Lord Justice Nicholls' comments that the balance of probabilities is not a rigid but a flexible standard. The burden of proof will be on the director to prove his case on the balance of probabilities. In cash forfeiture proceedings, the burden will be on Customs and Excise or on the police to prove on the balance of probabilities.

The wording in amendment No. 201 does not, to our knowledge, appear in any other legislation. Therefore, when clarity is important, it would be highly undesirable to introduce anything into the Bill that would prejudice that clarity.

I want to talk about amendments Nos. 59 and 163 at some length, as there has been considerable discussion about them. Clause 252 gives the enforcement authority the basic power to bring civil recovery proceedings, and it explains what they are for and against whom proceedings may be brought. The person against whom proceedings may be brought is immediately the subject of the obligations imposed on the enforcement authority by clause 252(2)(a). The phrase

"any person who the authority thinks holds recoverable property"

therefore explains who the target respondent is, and that civil recovery proceedings are concerned with recovering property from the people holding it.

That phrase does not do what amendment No. 59 seems to want it to do: it does not introduce a free-standing test that the authority would have to satisfy even to start civil recovery proceedings, and which could be used by a respondent by way of an extra round of challenge to undermine the authority's position at the outset. That is not how civil litigation normally works. A claimant does not need to pass the test of having reasonable grounds before bringing a claim.

The director cannot begin civil recovery proceedings on a whim, as was suggested by Opposition Members. High Court proceedings are a serious undertaking. The director is under a statutory obligation to exercise his functions efficiently and effectively. He cannot use public money unreasonably, and in any event, as a public authority he is bound by public and human rights law. He is not allowed to go on escapades of his own. No purpose is to be served by making unnecessary and disruptive preliminary challenges before a case can be looked at properly.

There are two paths down which the authority can travel. If an interim receiving order is to be sought, a good arguable case will have to be made, and if the authority proceeds straight to issuing a claim form, the full basis for the claim must be set out. As soon as a civil recovery action begins to affect anyone, mechanisms are in place to allow a respondent to challenge it.

Amendments Nos. 61 and 164 are unnecessary, because the Bill already provides that a court may not make a recovery order in the circumstances set out in them. Clause 311(9) explicitly provides that property is not recoverable if it has been taken into account in deciding the amount of a person's benefit from criminal conduct for the purpose of making a confiscation order. Clause 282(8) provides that, if property has been taken into account for the purpose of making a confiscation order and the enforcement authority subsequently seeks a recovery order in respect of related property, the confiscation order will be treated as a recovery order for the purposes of the clause. Not only is the original property that was taken into account for confiscation purposes not recoverable; any property that represents the original property is not recoverable either.

In speaking to amendment No. 61, the hon. Member for Beaconsfield suggested that even property considered in confiscation should not be potentially liable to civil recovery. I do not want to discuss that issue now, but he will recall that I wrote to him and the rest of the Committee, setting out at length the argument that property that is considered part of the confiscation case might nevertheless be brought within the ambit of civil recovery. Those arguments have not been refuted.

Government amendment No. 133 deals with an issue raised in Committee. It limits the power of entry to premises to which an interim order applies. I agreed in Committee that the power was too widely drawn and the amendment limits it to entering such premises as may be specified by the court in an interim recovery order.

Government amendments Nos. 114 and 235 provide that any court in which other proceedings are pending in respect of property that is, or may be, subject to an interim receiving order may stay the proceedings or impose its own terms on how they should continue. Before exercising that power, the court must give the enforcement authority and the interim receiver the right to be heard. Amendment No. 114 also requires the court to give any other person who may be affected by the order an opportunity to be heard before it exercises the power, and amendment No. 235 makes equivalent provision for Scotland.

Government amendment No. 286 applies where an interim administrator is to be independent of both parties. It makes it clear that he must not be a member of staff of the Scottish Administration. Amendment No. 287 is purely a drafting change. Amendments Nos. 116 to 119 are technical.

Amendment No. 62 would provide an avenue for compensation to a person whose property is not included in an interim receiving or administration order, but who has suffered loss or damage because the receiver or administrator reasonably, but mistakenly, dealt with his property. We discussed that point at some length in Committee, and I indicated that I would give it further thought. I understand the concern that has been expressed, but I am not persuaded that there is a case for the sort of change that the amendment would make to compensation provisions.

I accept that that may leave a category of persons with no avenue for compensation, but I have difficulty in envisaging circumstances in which that might happen without anyone being liable. Exonerating the receiver from liability in circumstances in which his action was based on a reasonable belief and where he was not negligent in causing loss or damage is the normal position in civil law. Liability normally assumes fault, and strict liability is very much the exception. We do not see the point in putting liability on the receiver in the circumstances outlined.

The question arises of whether we should provide another avenue for compensation. That might happen on the basis that because someone applied for an interim receiving order or administration order, they would be liable if the receiver or administrator dealt with property not covered by the order. The normal position is that a person does not become liable as a result of actions taken in respect of property not subject to proceedings. We would therefore be providing an unusual form of Crown insurance to those affected by the actions of an interim receiver in civil recovery cases if we agreed to the amendment. Compensation provisions in clause 287 mean that civil recovery proceedings follow the normal pattern for civil recovery actions.

The other Government amendments are minor and allow us to update Scottish legislation by bringing it into line with that which applies in England and Wales. They have no effective policy implications.

I ask hon. Members to understand that although the Bill contains many powers, those under part 5 are key to it. If we succeed in keeping them within the realms of civil recovery, they will enable us to take effective action against a group of people who for a long period have managed to put their ill-gotten gains beyond the reach of the law. The powers are needed. They are justified and they will do a great deal in respect of our ability to deal with those matters. Hon. Members raise important issues, but I ask them to consider the other side of the argument.

Dominic Grieve (Conservative, Beaconsfield)

The debate has been interesting and I am grateful to the Minister for taking the time to respond to the concerns that were expressed.

I share the hon. Gentleman's desire that assets that result from criminal conduct should be confiscated. He put a persuasive argument in relation to amendment No. 57: I would not want to put in jeopardy the possibility of recovering past assets. However, as he is aware, there is a link between all the amendments that we have considered: the hybridity of the system that we are establishing. That system will not be entirely criminal, administrative or civil. Overall, we retain serious reservations about it.

That is why, in a spirit of co-operation, we shall withdraw amendment No. 57. If the Minister is subject to a retrospective challenge under the Human Rights Act and the whole of part 5 is demolished as a result, we shall be able to tell him that we raised concerns about the matter. I hope that does not happen, however, and I understand the hon. Gentleman's arguments why it will not.

We shall thus ask to withdraw the amendment, but will put amendment No. 59 to the vote. I continue to believe that it is fundamental to the operation of part 5 that the procedure should be seen to be reasonable. Changing the clause by the use of the words "reasonable grounds to believe" is essential both to provide reassurance and to remind the director of the onerous duty placed on him. I ask that amendment No. 59 be put to the vote, but I beg to ask leave to withdraw the lead amendment.

Amendment, by leave, withdrawn.

Clause 252 — Enforcement Receivers

Schedule 3 — Powers of Interim Receiver or Administrator

Bob Ainsworth (Labour, Coventry North East)

I beg to move amendment No. 132, in page 267, line 5, at end insert—

'(6) This paragraph does not confer power to require a person—

(a) to produce, or give access to privileged material,

(b) to answer any privileged question.

(7) Where a person would be entitled to refuse to produce any material, or to refuse to answer any question—

(a) in relation to England and Wales and Northern Ireland, on grounds of legal professional privilege in proceedings in the High Court,

(b) in relation to Scotland, on grounds of legal privilege, within the meaning of Chapter 3 of Part 8,

the material or (as the case may be) question is privileged.'.

Michael Martin (Speaker, Glasgow Springburn)

With this it will be convenient to discuss the following: Government amendments Nos. 94, 95, 64, 109, 65 and 110.

Amendment No. 68, in clause 356, page 207, line 31, after "the", insert "current".

Government amendments Nos. 111, 165 and 113.

Bob Ainsworth (Labour, Coventry North East)

Most of our amendments are technical. Amendment No. 132, however, is slightly more than that. It deals with a problem that was raised in Committee. Hon. Members were right to think that there was an infringement on legal professional privilege, and we are putting that right.

As we have little time, I shall deal with amendment No. 68. It would limit the information that needs to be provided to the current name and address of a client. The amendment is not necessary. Its purpose is achieved in the Bill as drafted. It is self-evident in clause 356(1) that only the current name and address of the lawyer's client need to be disclosed, so the amendment would have no effect.

Nick Hawkins (Conservative, Surrey Heath)

The Minister says that clause 356 makes it clear that only the current address can be disclosed, but that is not the case. If it did say that, we would not have tabled the amendment, which is, of course, to clause 356.

Bob Ainsworth (Labour, Coventry North East)

The hon. Gentleman is not right. There is no requirement in that clause to disclose anything other than the current name and address. If he can show me, either now or subsequently, that that is not the case, I assure him that I will address the problem because that is not our intention or policy. I hope that my assurance is clear and unambiguous and that he can accept it. I am more than happy to give him further clarification if he needs it. I commend the Government amendment to the House.

The rest of the debate is in Hansard.