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Mr. Letwin: The hon. Gentleman and I differ about the purpose of this place. I do not think that it is a congratulations society for Ministers or Governments; its purpose is to ensure that we enact good law. We shall not have that if, in the justified pursuit of appalling villains who have destroyed thousands, probably millions, of lives around the country, we allow ourselves to be inveigled into establishing law that permits the state wrongly to pursue innocent individuals. I should have thought that that was common ground. I am genuinely surprised, as I thought that when those things were pointed out, Government Members would reflect on them, allow us to debate them in Committee and try to correct them. I had no intention of making a political onslaught; if I had, I would have adopted a different tone of voice.
Before turning to part 5, I want to mention a practical difficulty. I beg Ministers and Government Members not to regard this as a political attack, as my intention is serious. The practical difficulty arises from an item much loved by Ministers—the European convention on human rights, especially article 6(2). I do not maintain that the fact that there might be an incompatibility between the Bill and the convention means that the Bill is wrong and the convention right. That is not necessarily the position of Conservative Members, but the convention is in existence and, under the Human Rights Act 1998, Ministers have legislated for its incorporation in our legislation. A possible incompatibility is therefore a practical consideration. I know that the Home Secretary has signed the declaration that the Bill is compatible with the convention and I am sure that he has taken serious advice about that. I do not want to overstate my case, as he may well turn out to be right, but I wish to raise the matter because we shall need a clear exposition in Committee. An investigation must be conducted by the Joint Committee on Human Rights to ensure that none of us can pass legislation that is rapidly invalidated by the judges.
Article 6(2) of the ECHR states that everyone charged with a criminal offence shall be presumed innocent. That is a cardinal article of the ECHR. The exchange between my hon. and learned Friend the Member for Harborough (Mr. Garnier) and the Minister was important, because the presumption in clause 11 is that the court must make an assumption, as the Under-Secretary himself acknowledged,
that the party involved is, so to speak, guilty; all of his assets, as the Under-Secretary confirmed from a sedentary position, are assumed to come from criminal activity. That is the only way in which the articulation in clause 11 can work. It is obviously wrong to confiscate the assets of someone with a criminal lifestyle, unless they have come from criminal activity. Clause 11 assumes that the person involved has gained his assets through criminal activity; that is a presumption of guilt, as the Under-Secretary confirmed when he said that the individual can rebut that. I agree; of course he can. However, guilt is presumed if an individual is allowed to rebut the charge and demonstrate his innocence. That is a very different pattern of activity from that envisaged by article 6(2). I suspect that legal advice to the Home Office put a lot of weight on the difference between criminal proceedings and ancillary proceedings under clause 11. I am not a lawyer, but I believe that there is a jurisprudential trail, which shows that difference to be not incompatible with article 6(2).That is to say, I believe that there is a jurisprudential trail in which judges have decided that, in ancillary proceedings rather than criminal proceedings, it is reasonable in some cases to presume guilt. However, it may be rather difficult to put that amount of weight on that difference in the context of an action which seeks to deprive an individual of six years' worth of his entire assets, so we need to know whether the measure is compatible.
Mr. Garnier: Is not the force of my hon. Friend's argument all the greater when one considers that convention jurisprudence looks to the effect of the confiscation order and treats a confiscation order, whether it comes about through civil or criminal proceedings, as criminal? It is a penalty. My hon. Friend's point therefore needs to be dealt with rather more cogently than it is currently being dealt with by the Minister.
Mr. Letwin: That is a good point from a distinguished lawyer, unlike myself. If the case is as my hon. and learned Friend describes, the position is probably worse than I painted it. In any event, there is no substitute for the Joint Committee on Human Rights considering the matter carefully. None of us would wish to carry the Bill through Committee and discover that clause 11 invalidates the entire procedure.
Mr. Denham: Can the hon. Gentleman clarify his view of the use of assumptions in recovery proceedings under the existing legislation, which I believe was enacted under a Conservative Government, and his view of the fact that three challenges to the use of those assumptions under the European convention on human rights have all failed? He speaks as though neither assumptions nor tests of the ECHR have been a point at issue in the past. Indeed they have, and the finding was in favour of the use of assumptions.
Mr. Letwin: There is a difference between evidential assumptions and probity assumptions. In the present case, the assumption is not about evidence. The assumption is that there is a train of activity for which no proof needs to be adduced. It never needs to be shown by the prosecution that the six years' worth of assets were acquired illegally. There is not so much an assumption as a leap of faith.
I repeat: these are matters of legal fact. To our minds, although perhaps not to Ministers', whether the measure is compatible with the European convention on human rights is not a cast-iron argument for or against this part of the Bill. In practice, it needs to be compatible in order to be effective. That is clearly common ground. All that I am doing is to raise the point, which needs investigation by the Joint Committee, which I should have thought would also be common ground.
Stephen Hesford (Wirral, West): I am struggling to understand the hon. Gentleman's point, and I may not be alone in that. For my benefit, if no one else's, can he say whether he has taken advice from the shadow Attorney-General on the matter? If he has, that might explain why we are getting into such a mess.
Mr. Letwin: I find it pretty surprising that Labour Members think that a point raised by three major outside bodies—Justice, Liberty and the Law Society—should be the subject of political banter. We are discussing the liberties of the subject and the effectiveness of legislation that is intended to cure a great social evil. That should not be the subject of banter.
Mr. Bill Tynan (Hamilton, South): Will the hon. Gentleman comment on the case of Phillips v. the United Kingdom, in which Phillips alleged that the statutory assumption made against him in relation to his financial situation for the previous six years had violated article 6(2) of the convention? Will the hon. Gentleman comment on the fact that the European Court of Human Rights did not uphold that allegation?
Mr. Letwin: I have already tried to make the distinction between evidential assumptions and probity assumptions. I do not know why we are labouring the point. [Interruption.] The Minister of State, Scotland Office says from a sedentary position that I am labouring it. All I am doing is recommending that the matter be examined by a Joint Select Committee that was established by the Government under legislation on which the Government insisted. That seems reasonable.
Mr. Denham: I am not sure whether the hon. Gentleman knows that the same assumptions are made under existing statute in the case of those convicted of drug dealing. He seems to be under the misapprehension that some fundamentally new principle is being introduced. If there was some confusion in the earlier discussion, it was, I think, because we did not understand what the Minister did not understand.
Is the hon. Gentleman aware that the principle is already enshrined in legislation? The Bill undoubtedly broadens its application—that, after all, is the point of it—but will the hon. Gentleman acknowledge at least that the central principle already exists?
Mr. Letwin: It depends on what is meant by the central principle. It is true that if someone is convicted of a heinous offence—in this case, drug dealing—the assumption is made. What we are talking about here is someone who, prospectively, has been convicted of a
tachograph offence, been reported to a Crown court and then been found guilty of offences specified in regulations that we have not seen, which may have nothing to do with the matters in hand. That is a critical difference, and I cannot understand why it is not evident to Labour Members. If the measure is referred to a Joint Select Committee, however, we shall see whether it considers it to be compatible. I should have thought Ministers would have agreed to do that by now.Let me turn, at last, to part 5. I apologise for this, but we have rather more fundamental doubts about part 5 than about part 2. The overall aroma surrounding the agency that it establishes is remarkably similar to that of an agency well known to every Member, as we have all had to deal with the effects of it over the years. I remind Members that it was supported by every one of us, in all parts of the House—yes, I mean the Child Support Agency.
When the Bill creating the agency went through the House, no one squeaked. We have all since regretted that, have we not? It seems to me reasonable for us to say things about this agency, which has a remarkably similar role in some respects although in others it is very different, that at least mean we have a serious debate about it. That, surely, will be common ground.
Under part 5, we are setting up an agency that will have to act if, under clause 248(1), the agency "thinks"—not "reasonably judges"; and nothing in the clause forces it to take a series of steps to ensure that it has been duly diligent—that a person holds unlawfully gained property. This is a remarkable part of the Bill. The first step, or link in the chain, has parallels with the Al Capone case in part 2. There is a very wide—consciously wide, I assume—definition allowing the agency, if it has the merest thought that someone has unlawfully gained property, to institute proceedings.
What is much worse, however, or at any rate much more questionable, is that under clause 246(3)—the Minister was very clear about this—what the agency will then need to show in court is not that, beyond all reasonable doubt, there has been conduct which is unlawful, but that on the balance of probabilities such conduct has taken place.
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