Proceeds of Crime Bill
House of Commons, 24 July 2002.
Bob Ainsworth (Labour, Coventry North East)
I beg to move, That this House agrees with the Lords in the said amendment.
Alan Haselhurst (Deputy Speaker, Saffron Walden)
With this it will be convenient to take the following Lords amendments: No. 4C, in clause 341, page 200, line 3.
No. 4D, in clause 348, page 203, line 18.
No. 4F, in clause 353, page 206, line 41.
No. 4G, in clause 360, page 211, line 19.
No. 4H, in clause 366, page 213, line 44.
No. 4J, in clause 451, page 260, line 25.
No. 4K, in page 260, line 36.
No. 43, in clause 94, page 56, line 7.
No. 43B in clause 145, page 89, line 23.
No. 43C, in clause 375, page 218, line 6.
No. 43D, in clause 382, page 221, line 3.
No. 43E, in page 221, line 17.
No. 43F, in clause 386, page 223, line 35.
No. 43G, in clause 393, page 227, line 47.
No. 43H, in clause 399, page 230, line 21.
No. 43J, in clause 451, page 260, line 32.
No. 43K, in page 260, line 39.
No. 73, in clause 161, page 96, line 13.
No. 73B, in clause 229, page 140, line 4.
No. 73C, in clause 451, page 260, line 25.
No. 73D, in page 260, line 36.
Bob Ainsworth (Labour, Coventry North East)
I think that we are all agreed that one of the requirements for the granting of the investigatory powers and warrants in part 8 should be that it is in the public interest for the court to grant the order or warrant. When the Bill was introduced, the Government took the view that it was not necessary to replicate in the Bill the provisions in the previous legislation. That was because the Human Rights Act 1998 requires a judge to comply with all the safeguards that are provided by the European convention on human rights, and the Government were satisfied that that would cover the consideration of whether the granting of an investigatory power was in the public interest.
We recognise, however, that there have been continuing concerns, and we therefore decided to introduce an amendment in the other place to make it explicit in the Bill that the public interest test must be an integral part of the court's consideration. Lords amendments Nos. 4C to 4H and 43C to 43H do precisely that.
On Lords amendments in lieu Nos. 4B to 4K, 43B to 43K and 73B to 73D, last Thursday we discussed mandatory as opposed to discretionary confiscation. We cannot agree with the Opposition on that matter. We are determined that the confiscation system remain mandatory, and that we do not go backwards in that regard. The criminal lifestyle tests set out in parts 2 to 4 in theory expose a defendant to the criminal lifestyle regime where that defendant is convicted only of a trivial offence or offences that are not inherently indicative of a criminal lifestyle.
It would be possible for the court to apply assumptions where an offender is convicted of one acquisitive summary offence of any description that lasts for more than six months, or four summary offences of any description, from which only a very small amount of benefit had been derived. The same would be true where an offender was convicted of one offence of any description, from which he had benefited, and had two past convictions of any acquisitive offence. The benefit might be trivial, but a criminal lifestyle confiscation order could still be made.
In practice, the director or the prosecutor would never mount a confiscation proceeding in such an inappropriate case. There is a presentational issue here, however. We have reached the conclusion that it would be better for the Bill to impose a formal threshold before the criminal lifestyle tests can be applied. That will make it clear in the Bill that the authorities will not be able to apply for confiscation orders in trivial cases against offenders who are not convicted of offences specified in the criminal lifestyle schedules.
That is why we tabled these further amendments in lieu in the Lords. They aim to address concerns about the breadth of some of the criminal lifestyle tests, yet they preserve the integrity of confiscation as a mandatory procedure. We are making absolutely no change to the criminal lifestyle regime as it will apply to anybody convicted of one of the scheduled offences. There will be no financial threshold in such cases. But in relation to the other criminal lifestyle definitions, we are content to see a financial threshold imposed.
What we are saying is that for the criminal lifestyle tests to be satisfied, the total benefit from the triggering offences and any other offences taken into account for sentencing purposes will have to be £5,000 or more. The amendments introduce a power for the Secretary of State to change the £5,000 threshold by order. This power will be used, both to take account of inflation, and to respond to different patterns and trends of offending. It will be subject to the affirmative resolution procedure.
I invite the House to agree with their Lordships in their amendments in lieu.
Dominic Grieve (Conservative, Beaconsfield)
It is with some pleasure that I welcome the amendments that were tabled in the Lords in lieu of their previous amendments, and which the Government are willing to accept as Government amendments.
There is a long history to the matter. On a number of occasions in Committee we expressed concern about the threshold by which people went into the confiscatory regime and were deemed to have a criminal lifestyle. I must say to the Minister, and it would be wise for me to put it on the record, that there is a certain irony in the way in which the Government have finally seen fit to approach the matter. It lacks the flexibility of the judicial discretion route which, as the Minister knows, we preferred.
For instance, if the prosecutor and the Assets Recovery Agency took the view that an individual had committed a number of very minor offences but was nevertheless known to be a serious criminal, under the earlier amendments they might still have been able to initiate the confiscation regime—the Al Capone clause, as it has sometimes been called.
In this case, the Government have refused to go down that road, because they did not want judicial discretion. They have fettered the mandatory provisions in a minor way. In the circumstances that I have just described, the person would be able to escape the confiscatory regime. I accept that, as a matter of principle, it could be argued that that is the appropriate way to proceed, as in those circumstances he would not be deemed to have a criminal lifestyle.
Nevertheless, I entirely welcome what the Government have done in respect of the £5,000 threshold. They are absolutely right that that should not cover the schedule offences—that would go a long way to defeating the Bill. The Government have taken the appropriate course of action. In respect of the other offences, this measure finally lays to rest that much-debated subject of the person who has three convictions for not having a rear light on his vehicle in the previous three-year period. That could be construed to be an offence for gain—indeed, it would be because it would save them the cost of replacing the light bulb—and so would expose them to a parallel world in which they had to run the risk of having their assets confiscated, having been deemed to have a criminal lifestyle. To avoid confiscation, they would have the onerous burden placed on them of having to prove that they did not have a criminal lifestyle and having to show where their assets came from.
I welcome this measure. Of all the concessions that have been gently wrested from the Government during the passage of the Bill, this is the most significant. I am delighted that the Government have finally seen sense on this issue. As the Minister knows, we share with him the desire that this legislation should work. It will work only if it commands widespread public approval and is seen to be fair. This is a major step in that direction, and I am grateful to the Minister that, in the light of what happened in the Lords and the serious reservations that were expressed, he has seen fit to introduce this amendment.
Before we move on to the other matter that falls to be considered—[Interruption.] I did not think that the Minister went into any great length on the amendment of Lord Lloyd of Berwick. If he intended to cover it in this group, I shall reply to it at the same time.
Bob Ainsworth (Labour, Coventry North East)
I did not comment on that.
Dominic Grieve (Conservative, Beaconsfield)
I assumed that the Minister had not spoken to that amendment, and that he was going to do so subsequently. If not, I shall deal with it now.
Bob Ainsworth (Labour, Coventry North East)
I shall seek clarification, but I thought that we were going to discuss that amendment separately when we had disposed of this one.
Dominic Grieve (Conservative, Beaconsfield)
I apologise to the Minister. That is what I had assumed, and that was how I was treating the matter, but I wanted to make sure that I was not failing to take the opportunity to deal with it.
I shall refer to the other amendments in the group that the Minister has spoken to, which relate to the public interest tests that he introduced in respect of investigatory powers. [Interruption.] Again, the Minister will remember that in Committee we went to great lengths to point out that we did not think that the Human Rights Act 1998 on its own should be relied on. [Interruption.]
Alan Haselhurst (Deputy Speaker, Saffron Walden)
Order. To avoid any further exchanges and confusion, I refer hon. Members to the list of amendments that was published. These two matters are put down separately.
Dominic Grieve (Conservative, Beaconsfield)
The issue of the public interest test is simple. We think that there should always be a public interest test, and the Human Rights Act should not be used as a fallback position to justify passing legislation that does not include the safeguards that would ordinarily apply. I am extremely grateful to the Minister that, having debated that subject at enormous length in Committee and on other occasions, he has now provided those safeguards. I believe that that greatly improves the Bill. I am delighted that the other place saw fit to introduce that measure through the Government, and that we can accept it.
Norman Baker (Liberal Democrat, Lewes)
I welcome the amendments tabled by the Minister and his colleagues that have been brought back from the House of Lords. It is sensible to have a £5,000 de minimis level. The Minister neglected to mention that that was in amendment No. 280 that was discussed on Tuesday 4 December 2001. If I am not mistaken, it was tabled by my hon. Friend the Member for Mid-Dorset and North Poole (Mrs. Brooke) and me. [Interruption.] The Minister laughs, but the record will show that to be the case.
On that occasion, when I suggested that £5,000 was not a large figure, he said:
"I am always staggered by the affluence of other hon. Members. The hon. Gentleman has stated that £5,000 is a low figure. If I had obtained £5,000 by committing a crime, I would not consider it to be a low amount.
I shall not say any more, except that I acknowledge that hon. Members are genuinely attempting to steer the legislation in the right direction. However, I cannot see how we could do that without providing escape routes for serious criminals."—[Official Report, Standing Committee B, 4 December 2001; c. 446.]
Clearly, the Minister has accepted the thrust of my comments on that occasion, although he did not care to mention that in his introductory remarks. Perhaps he was concerned that the Prime Minister would accuse him of wrecking the Proceeds of Crime Bill, as he has accused others who have sought to improve it.
This is a sensible measure. A de minimis level is the right approach. I shall not wind up the Minister further for fear that he will withdraw the amendment or do something else with it.
While on de minimis levels, it is a pity that the Minister did not find a way of dealing satisfactorily with the points that we raised the other day on secure creditors. I shall be out of order if I go on about that for too long, Mr. Deputy Speaker, but I would just say that a de minimis provision would meet some of the concerns that Members have expressed. I hope that, even now, the Minister will consider whether that is a practical way to deal with that point.
The public interest provisions are equally welcome, and it is sensible to introduce them at this stage. Without wishing to be unkind to the Minister, I must say that had the provisions on the £5,000 de minimis level been brought forward earlier, there might not have been the amendments in the House of Lords that have caused him and his colleagues some difficulties. I hope that that shows to the Minister that he should sometimes pay attention to the wisdom that comes from Opposition Members. When he was making his comments about the £5,000 de minimis level, I noticed that his colleagues were nodding sagely as if it were a wonderful proposition. They are the same Members who howled down the proposal when it was made in Committee.
On that note of agreement, I am happy to support the Government in this group of amendments.
Bob Ainsworth (Labour, Coventry North East)
I welcome hon. Members' comments as far as they go. They are right that this is the most significant amendment that they have achieved, but its significance should not be exaggerated. As I said in my opening remarks, and as was said in Committee—I cannot remember in what context the hon. Member for Lewes (Norman Baker) raised the £5,000 de minimis issue and I cannot be bothered to check—in practice, confiscation proceedings for offences such as a missing rear light, which was repeatedly mentioned in Committee, would never be used. This measure puts that assurance in the Bill. If Opposition Members want to believe that it does something significant, they are welcome to do so.
With regard to the public interest, the situation would have been covered by the European convention on human rights. It is now in the Bill. If that makes hon. Members here and in the other place feel more comfortable and able to drop their more significant objections that would have seriously damaged the Bill, I welcome that as well.
Lords amendment agreed to.
Subsequent Lords amendments agreed to.
Clause 375 — Making of Order
Clause 229 — Criminal lifestyle
Clause 2 — Director's functions: general
Bob Ainsworth (Labour, Coventry North East)
I beg to move, That this House agrees with the Lords in the said amendment.
The amendment addresses the feeling that the bringing of criminal prosecutions is preferable when normal evidential and public-interest tests have been satisfied. We have always said that prosecution will remain the priority, and that the director of the new agency will pursue civil recovery or use his taxation powers only when prosecution is not appropriate. There has, however, been nothing in the Bill to that effect.
The amendment will ensure that the guidance given to the director by the Secretary of State under clause 2 will make clear that criminal investigations and criminal prosecutions will in general best secure the reduction of crime. I hope that that will allay any fears that civil recovery might be used in cases in which criminal proceedings should properly be brought.
Dominic Grieve (Conservative, Beaconsfield)
I welcome the amendment without hesitation. It is clearly a step in the right direction, as it would insert in the Bill a hierarchy of preference, thus providing at least some leverage to ensure that the civil recovery system was not abused in certain circumstances. I am thinking of circumstances in which it might have been open to the prosecution to go down a criminal route but it chose not to do so, for reasons relating not to the quality of evidence but simply to the ease involved in carrying out recovery measures.
As the Minister will know, what exercised those in the other place and, indeed, those of us who served on the Committee was the enormous problem—I think that it is still an enormous problem—that it would be possible to make an allegation of criminality against the person in possession of the money in some if not all cases. If the allegation were proved, that person might face all the opprobrium involved in having committed, or being held to have committed, a serious criminal offence that would result in confiscation or civil recovery of his assets, even if he had not been convicted of any offence. I feel that what has returned from the Government in the Lords is second best.
Given the way in which the House of Commons handled the matter, the Minister should count himself fortunate that we got anything back from the Lords. If he read the Hansard report of the debate there, he will know that there was amazement and criticism about our success in rejecting the original amendment moved by Lord Lloyd without any debate in this House. I say that to the Minister in all friendliness, as he had no part in this—save, I suppose, for his role as a Minister.
I must say that I was a little surprised to read that Lord Goldsmith, the Attorney-General in the other place, had said there that a programme motion had been agreed with the Opposition here before the debate took place. It was an agreed programme motion, he said; the Government had not insisted on it or forced it on us. It is true that we did not divide the House. If we had, we would have been fiercely criticised for reducing yet further the time available for us to consider these important amendments.
I hope that, when he has an opportunity to do so, the Minister will tell his noble Friend about the normal procedure in this House, and about the fierce criticism that he and other Ministers—and Whips—have heaped on the Opposition for dividing the House on programme motions. There was no agreement: it was the Government's decision to take the risk of trying to get the business through in the very short time available.
For that reason, it is especially regrettable that we have exposed ourselves to ridicule during our dealings with this important Bill because of the way in which an extremely serious amendment moved in the other place was treated here. It is lucky for the Minister that the other place, respecting its constitutional duty, decided that in the circumstances it would seek another amendment to which we could agree.
Let me put this on the record. I understand that such was the anger generated in the other place by the lack of scrutiny, it is rumoured—obviously I cannot speak for those in the other place—that if the same thing ever happens again the Lords will reject any amendment to a Lords amendment rejected by this House without debate. That was communicated to me, and the Government may have to heed it if they wish to achieve compromises at the end of the passage of long Bills.
As I said, I welcome the amendment, although whether it is sufficient only time will tell. Whether Lord Lloyd was right in his original amendment—to which he adhered, but which was defeated when it returned to the Lords—will have to depend on the Judicial Committee of the House of Lords. All I can say is that following the statement on the front of the Bill—couched in such redolent terms—that the Home Secretary is satisfied that the Bill complies with the Human Rights Act 1998, he may have to eat humble pie. Indeed, I will go further: given that he was put on notice repeatedly during our debates on the Bill about anxieties in regard to whether it complied with the Act, he might see fit to resign. If I were in his shoes, I would feel that that was the only course open to me.
Ian Lucas (Labour, Wrexham)
I believe that Lord Lloyd grossly overstated the position. This is the procedure whereby a court will determine whether property is seized on the balance of probabilities. I have dealt with the courts professionally in the past, and that is a determination, and a process, which occurs every day in the civil courts. I have acquired considerable respect for the hon. Gentleman over a long period, but he is over-egging the pudding.
Dominic Grieve (Conservative, Beaconsfield)
I listened carefully to what the hon. Gentleman said, and I greatly respect him for his contribution during the Bill's passage. He and I, along with a number of Members who are present, have lived with the Bill for a long time—and, I think, will part company with it shortly. I merely say to all who participated that our scrutiny here was, in many ways, a model of its kind. Having said that, I can only refer the hon. Gentleman to what Lord Lloyd said in the other place. He presented an extremely persuasive argument, which ought to make the Government reflect that the legislation as drafted in respect of civil recovery might not comply with the Human Rights Act.
Lord Lloyd may be wrong. The Government must believe that he is wrong, or they would not have persisted. It is clearly a genuine belief, and I appreciate the Minister's position. Lord Lloyd, however, has a far more considerable legal brain than I have—and, I suspect, a better legal brain than any other Member of the House of Commons. His was not an individual view, but one backed by a number of their lordships—including, I noted, Lord Goldsmith's head of chambers. That may give the Government pause for thought, but the matter will be tested as and when the time comes.
In the meantime—the other place having deferred to the will of this House, according to constitutional convention—it remains for me only to thank the Minister for his courtesy during the passage of this long Bill, and to wish the legislation well. Time will tell whether the House, by failing to consider carefully what Lord Lloyd had to say, has shot itself in the foot. I hope that I am wrong, but as I have said there is much good in the Bill, and by making this addition we are undoubtedly improving it.
Norman Baker (Liberal Democrat, Lewes)
I can be brief on this amendment as, to a large degree, I echo the points made by the hon. Member for Beaconsfield (Mr. Grieve). The amendment seems reasonably inconsequential. It reiterates a comment that the Minister made on a number of occasions throughout the Committee. I was personally in no doubt that the hierarchy to which he referred was in place. Indeed, I remember asking him about it at an early stage. My personal view, if it is not unconstitutional, is that the House of Lords has been bought off rather cheaply with this amendment. All credit to the Minister if that is what he has achieved. It is welcome so far as it goes but it just confirms what the Minister has already told us.
We were happy as a party to support Lord Lloyd's amendment in order to keep the ball in the air; there were issues to be considered. Had it come to the final decision, the amendment's impact may have gone too far for us. It may have weakened the legislation in a way that was beyond what was acceptable. However, it raised serious issues. The issue about human rights compliance is a genuine one. Doubtless the Minister has had advice on that from his officials and we will find out in due course whether any action will be taken and whether it will be successful. We wait to see what the outcome is.
The amendment is welcome so far as it goes. No one could possibly object to it. It is motherhood and apple pie. It is perhaps a nice way to end the Bill. As this is probably the last time that I shall speak on the Bill, I thank the Minister for his contributions and good humour throughout its passage, if not on other occasions. I thank the hon. Member for Beaconsfield and his colleagues for their contributions, too.
Bob Ainsworth (Labour, Coventry North East)
We have been over the substantive issue before. Serious allegations about individuals are regularly made in civil recovery—that point was made by the Attorney-General in another place—so we do not accept Lord Lloyd's amendments, but I hope that this measure helps in the passage of the Bill. Again, I do not think that it is of huge significance, as the hon. Member for Lewes (Norman Baker) said. The Committee was assured that this was the intention, this was the hierarchy and these were the priorities that should be given in relation to the different powers in the Bill. We have now put that in the Bill. That makes it clear.
On timetabling, I was surprised by the comments of the hon. Member for Beaconsfield (Mr. Grieve) because I think both he and I thought that we had allocated sufficient time to discuss the three Lords amendments. We then had two statements on that day. I think that I am not misrepresenting the position when I say that we both still thought that we had sufficient time. I do not think that anyone filibustered or wasted time last Thursday afternoon, yet we did not manage to get to that third important group of amendments.
That was not deliberate. I do not think that anyone meant to slight the other place in so doing. It shows—I hope that a degree of consensus is possible on this point—that if timetabling is to work, and I believe that there are great advantages to such procedures, great care and consideration need to be given as to how timetables are structured. In retrospect, if we had broken it down to ensure that the three substantive issues all received a degree of time, perhaps we would not have upset the Lords as we did. I hope that the hon. Gentleman agrees that it was not deliberate. We thought that we had allocated sufficient time, and I think that he did.
Dominic Grieve (Conservative, Beaconsfield)
rose—
Nick Hawkins (Conservative, Surrey Heath)
rose—
Bob Ainsworth (Labour, Coventry North East)
I will give way to either one of the hon. Gentlemen.
Nick Hawkins (Conservative, Surrey Heath)
Will the Minister understand that while of course there was no deliberate filibustering on the matter—we accept entirely that there was a genuine attempt to debate it—one of the things that caused problems on that day, which he can discuss with Government business managers, was the fact that there were two statements that seriously cut into the time? When the original programme motion was discussed we were not anticipating that. I hope that he will take that message back clearly. His point about splitting the matter so that there is separate timetabling for all the important issues is helpful and could be taken forward.
Bob Ainsworth (Labour, Coventry North East)
I acknowledge that point.
Dominic Grieve (Conservative, Beaconsfield)
I accept that as originally programmed there would have been ample time to debate the matter if there had not been the two statements. Once the two statements came in, we were faced with an impossible choice. I am sure that the Minister accepts that. To vote against the motion when the time came would have been to diminish the amount of time available. One simply had to hope for the best and hope that we could get through it. It was going to be touch and go. As it turned out, we did not get there, through no fault of anyone—sensible contributions were made on both sides of the House. It reflects the need for much greater flexibility if we are to do our job properly.
Bob Ainsworth (Labour, Coventry North East)
I thank the hon. Gentleman for that intervention. The only thing that remains to be said is that no insult to another place was intended by anyone in the House. I congratulate the Opposition Whip on the way he exposed the problem to maximise the difficulty that we had in another place. I thank hon. Members for their courteous remarks about me and everyone else who served on the Bill. A lot of Members put a lot of effort into it. I appreciate that.
Lords amendment agreed to.