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Mr. Carmichael: Should not the courts in England be given the discretion, rather than the courts in Scotland having it removed? Does the hon. Gentleman not accept that there could be severe cases where injustice will be done if courts are not given any discretion at all?
Mr. Lazarowicz: It is possible, but that would be wrong. My hon. Friend the Member for Wirral, West made the valuable point that part of the problem is the culture of the courts and prosecution services in making use of the measures. I am concerned that without such mandatory provisions, when the relevant conditions are met the culture may not result in the change in approach that is needed to tackle the problem.
Finally, I turn to the way in which the Bill has been introduced as a UK measure, even though it includes matters over which competence has been transferred to the Scottish Parliament. That is an excellent indication of how the Scottish Parliament and the UK Parliament can work together well in the interests of both Scotland and the rest of the UK. It is an excellent example of the new, devolved system of government working at its best.
9.15 pm
Vera Baird (Redcar): I can say with confidence that I am the last lawyer to speak in this debate and, perforce, I shall do so in headlines.
I welcome the Bill, as will the people of Redcar. As many hon. Members have said, it will give them protection from the predatory behaviour of drug dealers. However, I have huge reservations about the blunderbuss risk attached to the civil recovery procedure. I hope to be able to express some of those reservations at a more appropriate time in Standing Committee. The Bill is excellent, but it is rather heavy artillery.
I shall concentrate on a matter raised by a Conservative Member earlier in the debate. Clause 324(2)(b) would make it an offence if people in the regulated financial sector who had reasonable grounds to know or suspect that a person had been involved in money laundering did not report it. The problem is that the individual involved does not need to have known or suspected that another person was laundering money. He or she can be oblivious of the activity, but will, as the Bill is drafted, still be guilty of an offence by negligence. Such a person will be considered to be guilty of conduct that falls below the standard of a reasonable person.
That is almost unknown in the criminal law. Only in offences of manslaughter or public nuisance is it central to the liability that a person can negligently not notice that others are committing crimes. In this case, the crime is money laundering, and the penalty for negligently not noticing it or not reporting it is a maximum of five years. That is one of the most far-reaching and worrying aspects of what is otherwise a hugely well-intentioned Bill.
Finally, I, like other hon. Members who have contributed to the debate, am a member of the Joint Committee on Human Rights. We look forward to being able to deliberate more fully on this measure. We should be grateful to receive the rationale behind the advice that buttresses my right hon. Friend the Home Secretary's conviction that all the provisions in the Bill are compatible with the European convention on human rights. I suspect that the Joint Committee will have some concerns in that regard. I hope that those concerns, and the matters that I have raised this evening, will be received kindly by the Government.
9.18 pm
Mr. Dominic Grieve (Beaconsfield): My hon. Friend the Member for West Dorset (Mr. Letwin) made it clear at the outset that the Opposition support the aims of the Bill. We all want there to be in place a regime that ensures that criminals cannot enjoy the fruit of their criminality.
However, we would not be doing our job properly as the Opposition if we did not flag up the matters that concern us. It was suggested at one point in the debate that those matters should be left for the Standing Committee that will scrutinise the Bill. That is certainly the stage when matters will be considered in detail, but the seriousness of some of our anxieties is such that to omit to go into detail about them on Second Reading would be to fail to do them justice.
The debate has been thoughtful. Many hon. Members have contributed, and I apologise to those whom I neglect to mention, as I recognise that all who have spoken have made an individual contribution. It may be that, as the
House considers the details with which it must grapple, there is more common ground between the parties than some of the more intemperate remarks suggested. The hon. Member for Redcar (Vera Baird) encapsulated many of the points that we have been trying to make while, like us, welcoming the legislation.I thank those of my hon. Friends who made important contributions to the debate. Some rightly concentrated on their areas of expertise, and it was pleasant to hear from the hon. Member for Redcar. She recognised that the points made by my hon. Friends the Members for Sutton Coldfield (Mr. Mitchell), for Arundel and South Downs (Mr. Flight) and for Cities of London and Westminster (Mr. Field) about money laundering and its effect on financial services, and the potentially draconian penalties that will be visited upon those who are seen to have been negligent, described a very unusual state of affairs. Any right-thinking person wishing to see justice done would wish subjective and objective tests to be approached carefully.
Similarly, my hon. Friends the Members for Bromsgrove (Miss Kirkbride), for Witney (Mr. Cameron) and for Tatton (Mr. Osborne) raised concerns about wider civil liberties issues to which I will return. Each one also indicated that there were aspects of the legislation that we can support.
Let me turn to the powerful contributions of Labour Back-Bench Members. The extent to which many represented communities that had been devastated by organised criminality was apparent. Conservative Members are not oblivious of the facts. It is sometimes suggested that we live in ivory towers of wealthy constituencies. However, in my constituency and the one adjoining it, represented by the hon. Member for Slough (Fiona Mactaggart), I believe that the street price of heroin is at its lowest. That affects my constituents in exactly the same way as it affects hers. It is apparent that the profits are colossal. That is why I am bound to flag up the fact, as I did earlier in response to a comment, that we are sending out mixed messages. We slash the penalties for dealing and importing cannabis, although there may be a reason for reducing them for possession, while seeking to confiscate the assets of the individuals involved. The House may wish to ponder on that point.
The hon. Member for Central Fife (Mr. MacDougall) made his maiden speech this evening. It was unusual in that, unlike so many others, the hon. Gentleman succeeded in bringing his maiden speech to bear upon the topic that we were considering. I have no doubt that the hon. Gentleman will make many more useful contributions in times to come.
Some of the contributions, such as that of the hon. Member for Glasgow, Pollok (Mr. Davidson), who is no longer in his place, highlighted the dangers that we run when populist demagoguery and emotion allow us to get carried away on serious issues. Of course, dealing with organised crime is of concern to all of us but we should not deal with it at the expense of throwing away safeguards for the civil liberties of individuals.
I want to address some questions to the Ministers. I shall start on the point that was flagged up—although the hon. Members for Glasgow, Pollok and for Edinburgh, North and Leith (Mr. Lazarowicz) thought it was useless—to the effect that the regime that the Government are seeking to introduce under the confiscatory mechanisms for Scotland is different to that for England
and Wales, in that greater discretion is given to the court on the making of assumptions in Scotland than is given here. We shall want to explore that matter carefully, because if the extra safeguard provided in Scotland, which in my judgment is very sensible, can properly be provided north of the border, I cannot see a good reason why it cannot be provided down here also, particularly as the contribution of Scottish MPs claiming what the benefits would be for their constituents was predominant in tonight's debate. I therefore very much hope that, as a starting point, the Under-Secretary of State for the Home Department, the hon. Member for Coventry, North-East (Mr. Ainsworth), will address that issue when he winds up the debate. It will certainly be addressed in Committee.I can only say that I despaired when I discovered that the hon. Member for Glasgow, Pollok felt that the regime for Scotland was far too lax and that, in the phrase that I used to him but which he was really endorsing in return, he did not feel that it was possible to make omelettes without breaking eggs. I am sure that, if we turn ourselves into a tyrannical Government and regime, many criminals can be dealt with more expeditiously, but that does not turn us into a civil society, which is one of the things that differentiates us from tyrannies abroad.
While we are on the subject of tyrannies abroad, it may be worth turning to the issues in part 5. Conservative Members were seeking examples of ways in which individuals might find themselves prejudiced by the civil recovery procedures. I will turn to those procedures first because they are one of the areas that cause us most concern.
There is an underlying assumption in the civil recovery procedures. Under those procedures, individuals will be taken through a civil process intended to lead to the confiscation of their assets because, on the balance of probabilities, it has been deemed by the state agency that it thinks—"thinks" is the word—that those assets have been wrongly acquired.
In my experience as a barrister I have more than once come across individuals, particularly, interestingly enough, from ethnic minorities, who have been obliged to remove themselves from their country of origin, together with—I take this as an assumption, if I may use that word—their legitimately acquired assets, in circumstances that might well appear to be akin to those of an individual who might be engaged in crime. Indeed, in some cases, because of the tyrannical and confiscatory nature of the regimes that they were leaving, they had to engage in complex legal and financial shenanigans to achieve that, but it did not mean that those assets were wrongly acquired.
I shall put two points to the Minister. First, such individuals may, despite the fact that their assets were wholly legitimately acquired, have difficulty in showing their origin. Secondly—this may be the more important point, which we shall wish to revisit in Committee—we cannot get away from the fact that the system that we are devising will involve public hearings, as though it was ordinary civil litigation.
Doubtless those hearings will appeal to the prurient. A bit of schadenfreude always creeps in in these circumstances. It is always quite nice to see other people's finances being trotted out in the media, and I dare say that if it turns out that the person is a Mr. Big of the drug importation world, the revelations of the financial
transactions in which they engaged may be highly entertaining, and quite reassuring when finally they are potted and their money is taken away.However, it is worth considering that in the process that we are trying to set up, one of the things that we must do is cater for those cases where the agency gets it wrong. We can guarantee to the Under-Secretary—I suspect that he will not even gainsay us—that in some circumstances the agency will get it wrong and only the court will rule against it.
In those circumstances, what will happen to people whose business and family finances have been trotted out in public, especially as the revelations may jeopardise other members of their family in foreign countries? What system will be devised then? If those circumstances occur, should we consider—we shall do so in Committee—whether to allow those subjected to it to elect for the confidentiality of chambers, even if the final judgment is given in open court? I simply flag up that practical issue, which the Government should consider.
I see that a certain amount of gossip is taking place. If any of the three eminent members of the Treasury Bench wishes to intervene, I should be happy to give way; otherwise I shall continue.
I turn now to some of the other issues that have been raised. Cash seizures were not greatly commented on during the debate, but the provisions on cash seizure are doubtless particularly useful because they will allow the immediate seizure of cash. Equally, they are particularly draconian because they will be used to remove assets from individuals, virtually on the knock on the front door. Under the Bill, that can be done on the administrative say-so of a police officer, although it will also be possible for a justice of the peace to do so. Again, I simply flag up to the Minister this issue of detail and principle: why will the judicial authorities be semi-excluded from the process? If they will be allowed to take part, why not simply delete from the legislation the power of a police officer in those circumstances?
We have also heard much about prejudice, which I touched on in referring to the mechanism in relation to the part 5 procedure. However, an issue that was touched on by several hon. Members will require some careful consideration—namely, to what extent will those administrative procedures prevent criminal trials from taking place subsequently? The Minister of State, Scotland Office shakes his head, but that is rather a good question. Information about such people may be exposed all over the pages of The Sun and the News of the World, so how can they subsequently be charged with a criminal offence, given that they have effectively been trawled through the courts and the information has been put into the public domain about activities that would not have emerged during their criminal trials? That important issue needs to be addressed, given that we do not wish, as one or two hon. Members have said, to create a system that reduces the effectiveness of being able to send people to prison under the criminal justice system.
We also need to consider the fact that previous efforts to seize assets of one kind or another have not worked. That fundamental issue should really be debated on Second Reading, rather than in Committee. The Child Support Agency was mentioned, but equally we have to
draw attention to the manner in which the total number of seizures under the existing rules has consistently declined ever since they were introduced. I do not welcome that, but it suggests at least that there may be a problem with how such confiscatory mechanisms work in practice.Before we all start running down the road, waving our flags and banners and saying that we are pleased that the new system will lead to such wonderful results, I have to tell the Minister that he will have to satisfy the House and the Committee that, in practice, the provisions—especially those on the confiscatory rules, which, as Ministers have said several times, represent a consolidation measure—will be much more effective than the provisions that previously existed. If the Minister cannot satisfy us on that, the whole thrust of the legislation will be called into question.
It is easy for us in this House to be long on rhetoric, but we want to see the angels in the detail and not the devil. It would therefore be helpful if the Minister at least provided some indication in his winding-up speech of why he believes that the confiscatory mechanisms will work so much better than the present system.
I deal now with the confiscatory mechanisms that constitute the earlier parts of the Bill but which have been to an extent supplanted in the debate by anxieties over issues such as money laundering and part 5. There are some very odd things in the confiscatory provisions. Above all, they appear to centre on whether justice will be done either to people who are put through the process and exonerated or, most important, to third parties who are affected by the process and subsequently find that they are exonerated.
If somebody absconds and assumptions are made which are subsequently varied or rescinded, the court has power to award compensation if it thinks it just. However, if the full, normal procedure has taken place—notwithstanding the fact that subsequently the whole case may cave in—one is allowed to obtain compensation only in circumstances of serious default. I find the juxtaposition of those two things odd.
In such circumstances, the explanatory notes to the Bill strike me—frankly—as weird. They seem to say, "Oh well, as one was a very quick procedure, we feel that we should allow the just principle to apply, but as the other follows the normal criminal procedure, it should apply only in cases of serious default." I do not see why serious default should be the only ground for compensating people who suffer the adverse consequences of draconian legislation.
If the Government are confident that the people who are targeted will be found—if I may use that word; it is not the proper word in the circumstances—guilty or at least to be in default, why are they so concerned about paying full compensation in those circumstances? There is no justification for that. In so far as the provision may be a carry-over from earlier procedure, I strongly suggest to the Government that, given how much further and more extensively the net is being cast upon the waters, now is the time to change it. That is another example of an aspect that is fundamental to whether the Bill is acceptable. It will be considered in Committee, although it is right that we should flag it up at this stage.
I do not wish to take up more of the House's time. I hear one or two Members saying, "Hear, hear." We shall certainly seriously and as rapidly as possible consider
such matters in Committee, but let us not forget that we are dealing with a 444-clause Bill. It is longer than the Law of Property Act 1925. It is one of the largest pieces of legislation ever presented to the House in such a form. For a piece of semi-criminal legislation, that is in itself quite worrisome. It deserves close scrutiny. I repeat to the Minister what we have said before: we support the aims of the Bill, but that should not be an excuse for throwing away common sense and, above all, that should not be a reason for throwing away civil liberties.
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