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6.45 pm
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."
- "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".
Mr. Garnier: 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: 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.
Mr. John Taylor (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: 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.
Mr. John Redwood (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: 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?
Mr. Redwood: 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.
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